TaxTMI 
TaxTMI 
1996 (3) TMI 558
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....rity of India AIR 1979 SC 1628. The application of the principle and the rule of law makes no difference whether the exercise of power involves affectation of some right or denial of some privilege. The State Government being regulator and dispenser of special services and provider of a large number of benefits, is supposed to act fairly, impartially and in accordance with the provisions of law. 2. The Supreme Court in "The Director of Rationing and Distribution v. Corporation of Calcutta, AIR 1960 SC 1355, held," that in our country the rule of law prevails which has been guaranteed in our Constitution by virtue of the provisions contained in other parts. It was further held that it was inherent in the conception of the rule of law that the State, no less than its citizens and others were bound by the laws of the land. The Courts in this country have to follow the ordinary principles of construction that no one is exempted from operation of a statute unless the statute expressly guaranteed the exemption or the exemption arose by necessary implication. In a country which has a written Constitution and where the pattern of Government is democratic, as we have in our count....
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.... Court pertinently drew attention to the basic concept of natural justice vis-a-vis administrative and quasi-judicial enquiries and stated that any decision, whether executive, administrative or judicial or quasi-judicial, is no decision if it cannot be 'just' i.e. an impartial and objective assessment of all the pros and cons of a case, after due hearing of the parties concerned." 4. In the light of the acknowledged position of law as noted hereinabove, we are called upon to determine the constitutionality and legality of the action of the respondents in the matter of allotment of school sites to the respondents in different sectors in Urban Estate, Panchkula. The learned single Judge after holding on facts "that I have no hesitation in holding that the policy of pick and choose was adopted and those who were the favourites were allotted the sites without the claims of the applicants including the petitioners having been considered. The whole action is, therefore, illegal, arbitrary and capricious" but while granting the relief he refrained from cancelling the allotments made in favour of the private respondents. He, however, issued appropriate directions t....
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....titution, constitution whether registered or trust or society, its objects, the names and particulars of the Members of the Governing Body, last audit report, financial position, details of similar institutions set up at other places, requirement of land, purpose for which the land was required, requirement of electricity/water supply, land utilisation plan and recommendation of the concerned Deputy Commissioner etc. It was further pointed out that preference shall be given in the order, namely; firstly to Haryana Education Department, secondly to Central Schools Organisations, thirdly to prominent National/regional level institutions and fourthly to existing schools, with good reputation. In response to the advertisement, the writ petitioners as also the private respondents submitted their applications in the prescribed pro forma before the stipulated date. The record of the official respondents reveal that a total number of 72 applications were received. The appellants did not succeed in getting the sites allotted in their favour and the private respondents were selected for the purposes of allotment. Being aggrieved, the appellants filed Civil Writ Petitions in the Court challen....
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....erned, it was submitted that the institution was being run by a partnership firm of which one Ms. Charu Tuli hold 40 per cent, share. She was stated to be a post-graduate in English and widow of an Assistant Commissioner of Income Tax. She is stated to have applied for starting a school to permanently settle herself therein in the school. Another partner of the firm is stated to be Ms. Sandhya Dhaka holding 40 per cent, share. She claims to be having teaching experience of preliminary classes for more than six years. She is also stated to be interested in starting the school along with her sister for improving her prospectus in the life. The third partner Shri L. R. Malik had a share to the extent of 20 per cent. He has claimed to be retired Chief Engineer and the other two partners were his daughters. He claimed that he will be looking after the day to day management of the school in an effective manner. All the three partners claimed to have appeared before the Selection Committee constituted by the HUDA on 16-6-1988 and subjected to various questions regarding their educational qualifications and experience. A site measuring 2438 sq. mts. in Sector 9, Panchkula was allotted to T....
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....r, Ambala; 3. Sh. K. K. Sharma, District Education Officer, Ambala; 4. Sh. R. P. Singh, Senior Town Planner, Panchkula; and 5. Shri V. P. Chauhan, HCS, Estate Officer, Haryana Urban Development Authority, Panchkula. The allotment was made on the basis of the credentials of the applicants for running and managing the educational institutions of the type for which the site was applied for. The respondents claimed to be prominent educationalists and having vast experience for supervising the running of Nursery Schools as he had allegedly been looking after the Nursery School at various cantonments in the country on account of his being in the service of the Army. He has claimed to be M.A., B.Ed. and a Lecturer of English Literature from 1954 to 1960. From 1982 to 1985 he remained as Principal of the Sainik School in Bihar. He had also been a member of the Indian Public School Principal's Conference, New Delhi. He retired from the Education Core of the Indian Army w.e.f. 1-12-1989 and in his capacity as a Member of the Education Core, he has been Secretary of the Army School, Chandi Mandir. He has not denied the fact that at the time of filing of the application and allotme....
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....rder 41, Rule 22 of the C.P.C. is to allow the respondents in an appeal to support the decree of the lower Court by asserting that the matter decided against him should have been decided in his favour. Strictly speaking, the provisions of Order 41, Rule 22 of the C.P.C. are not applicable in proceedings arising out of the writ jurisdiction. 20. A Division Bench of the J. and K. High Court in Union of India and others v. Maj. Lalit Kumar, L.P.A. (W) No. 81 of 1992 dealt with the point and held : "The cross-objections filed by the respondents are not maintainable under the Letters Patent of this Court. Right to file the cross-objections is a statutory right conferred upon an aggrieved party under Order 41, Rule 22, C.P.C. The cross-objections are supposed to be filed by a party against any part of the decree passed under the Code of Civil Procedure. Filing of cross-objections being the creation of a statute cannot be extended to the constitutional remedies and the powers exercised under Article 226 of the Constitution of India. No cross-objections are, therefore, maintainable in an appeal filed against any proceedings arising out of a writ petition adjudicated by the Court un....
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...., with the result that the growth of most of the urban estates become slow and causes unnecessary dissatisfaction among the plot-holders, in particular and the public in general. Further, as the department has to follow the financial rules and regulations of the Government, the arrangement of finances and sanctions of estimates take a long time and the development works have not kept pace with the required physical development of the estates. Being a Government Department, the Urban Estates Department is unable to raise resources from various lending institutions, although, there are various financial institutions in the country willing to finance urban land development programmes which can be made self-financing. In order to overcome all these difficulties and to achieve expeditious development of the estate, it has been felt necessary that an Urban Development Authority should be set up." 24. Section 15 of the Act authorises the authority under the Act to dispose of any land acquired by it or transferred to it by the State Government to such persons, in such manner and subject to such terms and conditions as considered expedient for securing development. The authority u....
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.... other Organisations of public welfare, as may be decided by the Authority from time to time. 26. Regulation 5 deals with the sale or lease of land or building by auction. The period of lease as contemplated under Regulation is 99 years with effect from the date of allotment or auction as the case may be. 27. The Scheme of the Act and the Regulation envisages the sale or allotment of the land either by open auction or by allotment. It is further contemplated that the allotments are ordinarily required to be made on 'first come first serve' basis. The Authority is, however, to reserve the land for groups or individuals or for persons practising any profession or carrying on 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 perusal of Annexure P/3 appended with C.W.P. 1303 of 1989 shows that the Authority notified the school sites in different sectors of Urban Estate, Panchkula for allotment on leasehold basis. The applications were required to be submitted by 30-3-1988. Individuals/institut....
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....nce for the site in Sector 12, Panchkula keeping in view the reputation of the institution, its credibility, quality of education and the financial position of the institution, the Committee recommended that, "the condition that no applicant who had not responded to the advertisement should be considered, be relaxed in this very case". The first departure was, therefore, made in favour of respondent Bhartiya Vidhya Bhawan by allotting in the site for High School even though the said institution had not applied for it. The Committee is stated to have further allotted two primary school sites one in Sector 11 and the other in Sector 12 to the private institutions. The alleged criterion adopted were the good results, reasonable fee, financial position, present students strength and reputation of the already running institution, notwithstanding that the institution was in Chandigarh or elsewhere. The so-called criterion for allotment of sites was considered to be made in favour of M/s. Manav Mangal Society and Nav Bal Niketan Model Middle School. Departing from the criterion adopted for the purposes of making the allotment for Primary School sites, the Committee felt that eve....
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....ns 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 reasonable 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. 29. The respondent-authorities were required to observe the rule of law and make allotments with an open mind after following the prescribed criterion leaving no doubt for the aggrieved to make a grievance later on that undue benefits were conferred upon some and deprived to others. The administrative powers were require....
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....am, ( (1975) 3 SCR 619 :AIR 1975 SC 1331), such federal corporations would ex-hypothesi be agencies of the Government. In Great Britain too, the policy of public administration through separate corporations was gradually evolved and the conduct of basic industries through giant corporations has now become a permanent feature of public life. So far as India is concerned, the genesis of the emergence of corporations as instrumentalities or agencies of Government is to be found in the Government of India Resolution on Industrial Policy dated 6th April, 1948 where it was stated inter alia that "management of State enterprise will as a rule be through the medium of public corporation under the statutory control of the Central Government who will assume such powers as may be necessary to ensure this". It was in pursuance of the policy envisaged in this and subsequent resolutions on Industrial Policy that corporations were created by Government for setting up and management of public enterprises and carrying out other public functions. Ordinarily these functions could have been carried out by Government depart-mentally through its service personnel, but the instrumentality or ag....
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....urther observed that the Government or Authority as the case may be, is required to act fairly in arriving at the best available arrangement in the circumstances. 34. In the instant case, the allotments are appeared to have been made completely in violations of the provisions of the Act and the Regulation. It is further established that the action of the respondents was not fair and proper. The allotment appears to have been made under suspicious circumstances and without adopting any criterion. The Chief Administrator, HUDA, who appeared before the learned single Judge conceded that there was nothing on the record to show as to what weighed with the Selection Committee in rejecting the applications filed by the writ petitioners and other applicants. On fact, the learned single Judge rightly held (at pp. 74 and 75 of AIR) : "Keeping in view the facts of the present case, I am satisfied that the whole matter regarding the 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. A site has been allotted to Ajay Memorial Educational Socie....
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....id that the allottees fitted into that yardstick whereas unsuccessful applicants did not. As already stated earlier, no such principle was adopted whereas inconsistencies and arbitrariness are writ large. In these circumstances, I have no hesitation in holding that a policy of Pick and choose was adopted and those who were the favourites were allotted the sites without the claims of other applicants including the petitioners having been considered. The whole action is, therefore, illegal, arbitrary and capricious." 35. Under the circumstances it established that the whole action of the HUDA in making the allotments in favour of private respondents was illegal, unconstitutional, arbitrary and capricious. All the allotments made in favour of private respondents are, therefore, required to be quashed. 36. Even after holding that allotments were the result of pick and choose policy and the whole action was illegal, arbitrary and capricious, the learned single Judge ultimately held, on the result, the allotments though illegal and arbitrary are not being quashed in public interest". We do not agree with the conclusion of the learned single Judge by which the allotments were ....
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....cerned with the consequences' which are likely to arise on account of the determination of the rights of the parties. The Courts are also not concerned with the names or faces or reputation of the parties before it. Once the lis has been decided in accordance with the Constitution and the provisions of law, the consequences would normally follow unless compelling, cogent or valid reasons are shown otherwise. The bona fides of the respondents in the instant case have been proved to be not free from doubt from the very beginning. They manipulated the allotments in their favour and raised alleged huge constructions at their own risk and responsibility under the cloak of the Court orders permitting them construction on the conditions which now they do not want to follow. Notwithstanding the fact that the respondents had raised constructions, their allotments cannot be permitted to be continued. We do not agree with the finding of the learned single Judge to this extent and direct that the allotments made in favour of private respondents are quashed. 38. However, keeping in view the interests of students, teachers and some amount spent by the respondents, even though at their own r....