TaxTMI 
TaxTMI 
2015 (8) TMI 1495
X X X X Extracts X X X X
X X X X Extracts X X X X
....s directed against an order dated 16.9.2011 passed by the Director General, Town and Country Planning, Haryana. The petitioners are owners of land measuring 108 kanal 19 marla (13.61875 acres) in the revenue estate of village Ullawas, Tehsil and District Gurgaon. As per the petitioners, the minimum area for grant of licence for a Group Housing Colony is 10 acres. The petitioners applied for licence for developing a Group Housing Colony in terms of the Haryana Development and Regulation of Urban Areas Act, 1975 (for short 'the 1975 Act') on 10.9.2010, received by the respondents on 13.9.2010. The petitioners state that they meet the criteria for grant of licence even if partition of the land measuring 13 kanal 15 marla was pending at that time as it came to be decided on 22.12.2011. It is pointed out that, on the other hand, the Director General, Department of Town and Country Planning, Haryana, has granted licences to the private respondents by seeking removal of deficiencies by such respondents, though the similar treatment was not extended to the petitioner. The undisputed facts are that earlier a Final Development Plan was published on 5.2.2007 under Section 5 of the P....
X X X X Extracts X X X X
X X X X Extracts X X X X
....own risk fully knowing the above stated position. Any application received on the basis of proposed proposals in Draft Development Plan, Gurgaon-Manesar. Urban Complex - 2025 before its publication in official Gazette will be rejected." The petitioners applied for licence on 10.9.2010 in Sector 60 though in the Draft Development Plan published later, such land now forms part of Sector 63-A, Gurgaon. The private respondents submitted their respective applications for Group Housing Licences on 4.10.2010 itself, the day draft development plans was published in the official gazette and a public notice in the news papers was published. It is pointed out by the petitioners that some of the respondents have prepared the demand draft(s) of the requisite amount for licence on 1.10.2010 itself. A show cause notice dated 6.10.2010 was given to the petitioners that the application for grant of licence for 13.61875 acres cannot be considered in terms of Section 3(3)(b) of the 1975 Act. Subsequently, the request for grant of licence was declined on 9.11.2010. The reasons communicated in the forwarding letter read as under:- "3. The applied land was falling outside the limits of Final Develo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....granted to any other party, the license so granted, shall remain in abeyance, for a week so as to enable the petitioners to file an appeal. The order dated 04.10.2010 (Annexure P-6) is consequently set aside. No order as to costs." It is thereafter the request of the petitioners for grant of licence was declined on 19.9.2011 vide Annexure P. 14. The petitioners challenged the said order in CWP No. 18511 of 2011, which was disposed of with liberty to the petitioners to file an appeal against the impugned order. It is thereafter the Principal Secretary, Government of Haryana passed the order on 20.9.2013. The relevant extracts from the said order read as under:- "7. ...........The appellants land, though not a part of the Development Plan as published on 05.02.2007, on the date of submission of their application for license, intentionally mislead the department, claiming it to be falling in Sector-60, Gurgaon. Similarly there is no merit in the contention of the appellant that the grounds of rejection were not mentioned in the notice dated 30.08.2011. The application of the appellant was rejected vide order dated 09.11.2010. The Hon'ble High Court vide order dated 09.08.2011, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sidered:- "1. How the licence for development of a colony can be granted on publication of draft development plans published in terms of Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 1963? 2. As to how the policy for grant of licence on first come first served basis is fair and reasonable, in view of the Hon'ble Supreme Court judgment titled as Centre for Public Interest Litigation and others v. Union of India and others, 2012 (3) SCC page 1? In pursuance of such order, an additional affidavit of the Chief Town Planner, Haryana dated 19.8.2015 was filed relying upon the policy dated 5.7.2012. The said policy reads as under:- "The matter pertaining to fixing the effective date for acceptance and consideration of licence applications vis-`-vis the publication of Development Plans has been considered by the Government keeping in view the present practice of accepting such applications after notification of the Draft Development Plans in the Official Gazette and at times even grant of licences before the publication of Final Development Plans, except the practice followed in case of Gurgaon Manesar Urban Complex where licences were g....
X X X X Extracts X X X X
X X X X Extracts X X X X
....mission of the application. However, the effective date for acceptance and consideration of licence applications shall continue to remain as prescribed under Sr. No. (i) and (ii) above. (v) Any application submitted prior to the prescribed effective date shall be considered as premature and shall be returned for re-submission after publication of the respective Development Plan." In the affidavit, it has been stated that the 1963 Act is umbrella legislation for the purpose of regulating the development in the scheduled area and hence the land use proposal of the development plan forms basis for consideration of the licence applications under the 1975 Act. The Department continued to receive the licence applications on the basis of revised draft development plans, but the licences were granted only after publication of the Final Development Plan in the year 1996 and later revised on 5.2.2007. It is said to the following effect:- "4. That in this regard, it is submitted that as per practice followed after 05.07.2012, the licence applications have been considered for grant of licence in High and Hyper Potential Zones only on the basis of the Final Development Plan published under....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the Development Plan proposals already in vogue of the applied area. Even this is done with the prior approval of the State Government. Hence, at present, no licence application in High and Hyper Potential Zones is considered for grant of licence on the basis of the Draft Development Plan. 5. That regarding second observation as to how the policy for grant of licence on first come first served basis is fair and reasonable in view of the Hon'ble Supreme Court judgment titled as Centre for Public Interest Litigation and others v. Union of India and others, it is clarified that the said policy of first come first served has been adopted as a 'Principle of Natural Justice'. It is further added that since no natural resource in the ownership of Government is being offered through a licence under Act No. 8 of 1975, the Hon'ble Supreme Court judgment in Centre for Public Interest Litigation and others v. Union of India and others does not appear to be applicable in such licence cases. The applications for grant of licence are accordingly considered on merits of the case and as per provisions laid down in the Act of 1975 and the Rules made there-under. However, the Gover....
X X X X Extracts X X X X
X X X X Extracts X X X X
....se of licence(s) of the natural resources, but in the present case, the licence is not for a natural resource but in respect of a property owned by the respondents. Therefore, the principles laid down in the aforesaid case cannot be extended to the facts of the present case. Shri Arun Monga, learned counsel representing respondent No. 7 argued that the principle of first come first served basis is not a principle followed by the State. In fact said respondent was applicant No. 17 on 4.10.2010 but has been granted licence. Therefore, it is the suitability of an applicant which is taken into consideration for the grant of licences. Shri Aashish Chopra, learned counsel representing respondent No. 6 argued that the petitioners applied for a licence of Sector 60 and in respect of which no density was available. The density is explained to mean the extent of area available for Group Housing Licence, which as per the State Government is 20% of the area of the residential area is permissible for Group Housing component. The petitioners applied for a licence in Sector 60 though the total available licensed area stood utilized. The petitioner was not an applicant for a licence in Sector 63....
X X X X Extracts X X X X
X X X X Extracts X X X X
....irty days from the date of publication of the notification under sub-section (4), send to the Director his objection and suggestion in writing, if any, in respect of such plans and the Director shall consider the same and forward them with his recommendations to the Government within a period of sixty days from the aforesaid date. (6) The Director shall also give reasonable opportunities to every local authority, within whose local limits any land included in the controlled area is situated, to make any representation with respect to the plans. (7) After considering the objections, suggestions and representations if any, and the recommendations of the Director thereon, the Government shall decide as to the final plans showing the controlled area and signifying therein the nature of restrictions and conditions applicable to the controlled area and publish the same in the Official Gazette and in such other manner as may be prescribed. (8) Provision may be made by rules made in this behalf with respect to the form and content of the plans and with respect to the procedure to be followed, and any other matter in connection with the preparation, submission and approval of the plan....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tax clearance certificate:- Provided that if the conversion charges have already been paid under the provisions of the Punjab Scheduled Roads and controlled Areas Restriction of Unregulated Development Act, 1963 (41 of 1963), no such charges shall be payable under this section (2) On receipt of the application under sub-section (1), the Director shall, among other things, enquire into the following matters, namely:- (a) title to the land; (b) extent and situation of the land; (c) capacity to develop a colony; (d) the layout of a colony; (e) plan regarding the development works to be executed in a colony; (f) conformity of the development schemes of the colony land to those of the neighbouring areas. xx xx xx (3) After the enquiry under sub-section (2), the Director, by an order in writing, shall-" Haryana Development and Regulation of Urban Areas Rules, 1976 "2. Definitions. - In these Rules unless the context otherwise requires:- (a), (b) and (c) xx xx xx (cc) "development plan" means the plan prepared under the provisions of the Punjab Scheduled Roads and controlled Areas Restriction of Unregulated Development Rules, 1965. xx xx xx 3. Application....
X X X X Extracts X X X X
X X X X Extracts X X X X
....oup Housing Colony but contemplates grant of licences for change of land use. Under 1975 Act, an application for a licence can be filed with the documents of title of the land; extent and situation of the land; capacity to develop a colony and the layout of a colony. There is no reference to the requirement of conformity with any development plan at the time of submission of the application for the Group Housing Licence. It is only at the time of grant of license, the development plan becomes relevant in terms of Rule 8 of 1976 Rules that too after such clause was inserted by amendment on 29.1.2007. The development plan as contemplated by the 1975 Act is a Final Development Plan. Still further, we find that the decision of the State Government, to accept application on the basis of Draft Development Plan, in High and Hyper Potential Zones and applications in respect of other areas on the basis of Final Development Plan is without any reasonable basis. It is not a classification based on an intelligible differentia, which can be sustained. The 1975 Act contemplates only the Final Development Plan. Therefore, the action of the respondents in accepting the applications on the basis o....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... must always adopt a rational method for disposal of public property and no attempt should be made to scuttle the claim of worthy applicants. When it comes to alienation of scarce natural resources like spectrum etc., it is the burden of the State to ensure that a non-discriminatory method is adopted for distribution and alienation, which would necessarily result in protection of national/public interest. 96. In our view, a duly publicized auction conducted fairly and impartially is perhaps the best method for discharging this burden and the methods like first-come-first-served when used for alienation of natural resources/public property are likely to be misused by unscrupulous people who are only interested in garnering maximum financial benefit and have no respect for the constitutional ethos and values. In other words, while transferring or alienating the natural resources, the State is duty bound to adopt the method of auction by giving wide publicity so that all eligible persons can participate in the process." The issue of grant of state privileges by the process of auction alone came up for answer in the Presidential Reference, since reported as Natural Resources Allocat....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ry of natural resources. A concern would risk undertaking such exploration and incur heavy costs only if it was assured utilization of the resource discovered: a prudent business venture would not like to incur the high costs involved in exploration activities and then compete for that resource in an open auction. The logic is similar to that applied in patents. Firms are given incentives to invest in research and development with the promise of exclusive access to the market for the sale of that invention. Such an approach is economically and legally sound and sometimes necessary to spur research and development. Similarly, bundling exploration and exploitation contracts may be necessary to spur growth in a specific industry. xx xx xx 146. To summarise in the context of the present Reference, it needs to be emphasised that this Court cannot conduct a comparative study of the various methods of distribution of natural resources and suggest the most efficacious mode, if there is one universal efficacious method in the first place. It respects the mandate and wisdom of the executive for such matters. The methodology pertaining to disposal of natural resources is clearly an econom....
X X X X Extracts X X X X
X X X X Extracts X X X X
....to be owner of the land. There is no compulsion for him to change the land use or to set up a colony, but once it is proposed to set up a colony, then the statutory conditions, pre-requisite for grant of a licence, are to be satisfied. We further find that the principle of first come first served basis has led to an unholy race. The petitioners submitted their application dated 10.9.2010 which was received on 13.09.2010 soon after the finalization of the lay out plan on 25.08.2010. Some of the other aspirants submitted applications for licences on the day the Draft Development Plan was published on 4.10.2010. We find that the public notice does not give any starting time for submission of an application nor the last date. It is an open ended scheme. Any applicant can apply at any point of time. Such application would be considered if the density is available. It does not take into consideration as to whether the external developments have been completed or shall be completed by the time the constructed apartments in the Group Housing shall be offered for possession. It does not reflect the preparedness of the State for the grant of licence. Since Gurgaon is a fast developing urban....