27.03.2015 CWP No.5075 of 2010 Mulakh Raj Dhamija

Transcription

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CWP No.5075 of 2010 & other connected cases
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of decision: 27.03.2015
CWP No.5075 of 2010
Mulakh Raj Dhamija & others
….Petitioners
Vs.
State of Haryana & others
Present:
.....Respondents
Mr. Sushil Jain, Advocate, for the petitioners.
Mr. P.K.Jangra, Addl. AG, Haryana for respondent No.1.
Mr. Dheeraj Chawla, Advocate, for respondent Nos.2.
Mr. N.C.Sahni, Advocate, for respondent No.5.
Mr. Ashok Kumar Sehrawat, Advocate, for respondent Nos.4,
11, 15, 30, 37, 41, 43, 55, 66, 95, 103, 110, 113, 126, 131, 140,
152, 172, 186, 204 & 207.
Mr. Kunal Mulwani, Advocate, for respondent No.9.
Mr. Deepak Girotra, Advocate, for respondent Nos.15 & 43.
Mr. Dinesh Arora, Advocate, for respondent Nos.17, 19, 65, 68,
74, 81, 88, 100, 164, 179, 182 & 223.
Mr. Puneet Bali, Senior Advocate, with
Mr. Nitish K. Vasudeva, Advocate, for respondent Nos.26, 35,
40, 45, 47 to 49, 61, 63, 77, 83, 87, 90, 93, 94, 97, 99, 102, 105,
108, 117, 119, 125, 129, 133, 136, 137, 151, 153, 156, 183,
192, 198 & 206.
Mr. Kulvir Narwal, Advocate, for respondent No.33.
Mr. Deepak Agnihotri, Advocate, for respondent No.51.
Mr. Sandeep K. Sharma, Advocate, for respondent Nos.57, 150,
176 & 203.
Mr. R.N.Lohan, Advocate, for respondent No.70.
Mr. Puran Singh Rana, Advocate, for respondent Nos.60 & 21.
Mr. S.P.Chahar, Advocate, for respondent Nos.69, 142 & 165.
Mr. Virender Kumar, Advocate, for respondent No.106.
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I attest to the accuracy and
integrity of this document
Chandigarh
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CWP No.1923 of 2010
IDC, Industrial Association through its Secretary
….Petitioner
Vs.
.....Respondents
CWP No.13000 of 2010
Sandeep Garg & others
….Petitioners
Vs.
.....Respondents
CWP No.14275 of 2010
Shiva Electroplates
….Petitioner
Vs.
.....Respondents
CWP No.11658 of 2010
Narinder Singh & others
….Petitioners
Vs.
.....Respondents
CWP No.14855 of 2011
Rajesh Kumar Gupta & others
….Petitioners
Vs.
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.....Respondents
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CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON’BLE MR. JUSTICE HARI PAL VERMA
HEMANT GUPTA, J.
This order shall dispose of aforementioned writ petitions,
whereby the petitioners have challenged the allotment of industrial plots in
Industrial Estate Kutana, Rohtak made in favour of respondent Nos.3 to 224
on the ground that the same is illegal & arbitrary on account of nepotism and
favouritism without making any criteria and without following the due
procedure established under the law. The petitioners have also sought a writ
in the nature of mandamus directing respondent No.1 to handover the matter
to some independent investigating agency for investigation and for
conducting an independent enquiry with regard to the allotment of industrial
plots by respondent No.2 – Haryana State Industrial and Infrastructure
Development Corporation.
2.
Respondent No.2 - Haryana State Industrial and Infrastructure
Development Corporation (for short ‘the Corporation’) published an
advertisement on 02.06.2008 (Annexure P-1) inviting applications for
allotment of 202 industrial plots of various sizes situated at Kutana, District
Rohtak at the rate of Rs.2750/- per sq. meters, which was later on revised to
Rs.3000/- per sq. meters. The last date for submission of applications was
15.07.2008. The willing persons to seek allotment of industrial plot were
required to apply on a prescribed application form alongwith supporting
documents/information. It is pointed out that allotment commensurate with
the project shall be made depending on the merits of the case, viz. technical
feasibility and economic viability, background of the applicant etc. including
availability of plots.
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The advertisement further contemplated that all
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allotments shall be made in accordance with the Estate Management
Procedures (EMP - 2005) of the Corporation, which have been appended by
the Corporation as Annexure R-2/1.
The application form had different
columns including whether the applicant/promoters hold an industrial plot in
the State of Haryana; the details of the proposed project as well as the
project cost and the means of financing.
The description of 202 plots
advertised is as under:
Size of plots (in sq. mtrs.)
312.50
450
1012.50
1800
4050
No. of plots
60
50
50
30
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Pursuant to such advertisement, 1001 applications were
received. However, after considering the request of some of the applicants
for withdrawal, 977 applicants were called for interview. The petitioners
and the private respondents herein are amongst the applicants for the
allotment of such industrial plots. The interviews were conducted on 4th, 5th,
6th, 30th & 31st of March; 16th, 17th & 21st of April; 11th, 12th & 13th of May;
15th & 16th of June as well as on 10th of July, 2009 by the Allotment
Committee consisting of Smt. Dheera Khandelwal, IAS, Managing Director,
Haryana Financial Corporation; Shri Rajeev Arora, IAS, Managing Director
of the Corporation & Shri Arun Kumar, IAS, Director of Industries,
Government of Haryana. After the conclusion of interviews, the result in
respect of 222 successful applicants was declared on 20.08.2009, whereas
the Haryana Vidhan Sabha (State Legislature) was dissolved on 22.08.2009
on completion of its term.
3.
The petitioners have alleged that the fact that result was
withheld for more than 5 months shows that the ruling party had allotted the
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industrial plots in order to extend benefit to their political supporters and in
order to appease the persons having strong political connections. This entire
exercise was done so that the successful candidates would extend their
support to the then ruling party in the forthcoming elections to the Vidhan
Sabha. The petitioners have also alleged that the allotments have been made
without making any criteria for judging the suitability of the applicants and
that such allotments have been made on the basis of pick and choose method
and on account of nepotism, political considerations / extraneous
considerations, after totally ignoring the qualifications, working experience
in the same line, economic feasibility and technical viability and marketing
tie-ups of the applicants.
4.
The petitioners have given various instances pointing out that
how the process of allotment has been conducted without framing any
criteria and merely by recording where the allotment was to be made that the
project is feasible, but in respect of others to say that the project is not
feasible.
5.
In the written statement, the stand of the Corporation is that in
Rohtak, till recently, there was a small industrial estate, spread over an area
of 65 acres. The Corporation initiated steps and developed a new Industrial
Estate adjoining the existing Industrial Development Corporation (IDC)
developed by Industries Department to cater to the needs of local
entrepreneur and adjoining area to set up their small and medium scale
enterprises and give up a fillip to industrialization in the District. It is stated
that the Allotment Committee consisting of Senior Officers of All India
Services of Haryana Cadre and that there is no allegation leveled against any
of the Committee Members specifically regarding allotment of plots in
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question. It is pointed out that the petitioners are estopped from challenging
the allotments on the ground that there was no criteria as the advertisement
itself contemplated the parameters, which were to be kept in view for
allotment of plots.
It is stated that inter se comparison on merits and
potential of the petitioners viz-a-viz the private respondents against whom
the petitioners have leveled specific allegations would show that there was
arbitrariness in the decision making process even though some of the
allottees may have more experience, yet the selection process was not unfair
as alleged. The relevant extract from the written statement reads as under:
“3.
That it is further respectfully submitted that the inter se
comparison of the merits & potential of the petitioners viz-a-viz the
private respondents against whom the petitioners have leveled
specific allegations will show that there was arbitrariness in the
decision making process of the answering respondent even though
some of the allottees may have more experience, however, yet the
selection process was not unfair as alleged.
The scope of
interference in a writ petition is very limited and is generally
confined to ensure that the decision making process ought to have
been fair and not the end result as that is the subjective assessment &
satisfaction of the selection authority and as such the Hon’ble Court
will not substitute its own opinion by stepping into the shoes of the
allotment committee”. (…..emphasis supplied)
6.
It is also pointed out that the Allotment Committee comprises
of experts, who are well versed with the requirement of the industry, given
the preference in allotment to the following category of entrepreneurs:
“1.
Ex-serviceman;
2.
Women;
3.
Unemployed Engineering Graduates / Polytechnic / ITI
trained candidates;
4.
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Expansion / Shifting of existing units;
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5.
Oustees on account of acquisition of land for that particular
Estate within the terms and conditions of Estate Management
Procedure (EMP).”
7.
It is also pointed out that the Committee considered the
background of the applicant i.e. qualification, manufacturing experience in
line, potential for export, working results of the existing firm, marketing
arrangements, resource position, justification of the proposed area and
whether the project involves shifting of units from non-conforming area etc.
The Committee gave preference to established entrepreneur on one hand and
decided to give adequate representation to first generation, small/middle
level household/tiny entrepreneur and women entrepreneur especially those
who exhibited their entrepreneurial ability during the interview. Otherwise
this class would never get a chance to set up their own ventures.
8.
The Corporation in the written statement justified the
allotments made to some of the private respondents by stating to the
following effect:
“The petitioners have made almost all the allottees as
respondents, however, there are some cases which have been
specifically challenged by them.
They have made general
allegations that the allotment has been made in total illegal and
arbitrary manner on account of political as well as extraneous
considerations. The merits and the justifications for allotment of
plots to those allottees are given as under:
Respondent No.34 (K-83)
No doubt that the respondent is a farmer, but he is
having the full entrepreneurial qualities in him.
He full
convinced the Committee about his qualities and confidence
for setting up and running the unit. Not only these, he is
having financial resources in the form of agriculture land for
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implementation of the project. Keeping in view, all these
facts, the Committee allotted a plot to him.
The respondent is a fully educated person. He is BA,
LLB with post graduate diploma in Journalism and Mass
Communication. Though he does not have direct working
experience in the line, but he was having full knowledge
about the product which he proposes to manufacture in the
unit.
He showed a lot of confidence and convinced the
committee about his capabilities for the implementation and
running of the unit.
Considering all these facts, the
committee found him eligible and allotted a plot to him.
The respondent is a Sarpanch of village. He is having
the detailed knowledge about the product and have
entrepreneurial qualities in him.
He fully convinced the
committee about his capabilities and confidence for setting up
and running the project successfully. As far as the marketing
tie up which has been specifically challenged by the petitioner
is concerned, he in his application already informed that there
are so many industries in Delhi, Noida & surrounding areas
where his product i.e. corrugated boxes are used for packing
purposes. He does not anticipate any problem in selling his
products. The committee considered his qualities, confidence
which he shown during the interview and encouraged him to
enter into industrial activities by allotting a plot for setting up
a project.
The respondent is a fully educated person. He is MA
& LLB.
Though he does not have directing working
experience in the line, but he is having full knowledge about
the product which he proposes to manufacture in the unit. He
shown a lot of confidence and convinced the committee about
his capabilities for the implementation and running the unit.
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Considering all these facts, the committee found him eligible
and allotted a plot him.
The respondent Dr. Sushma is an educated woman.
She is Principal in a College and having vast experience in
the teaching line.
She is going to retire in 2010.
The
Committee observed that she is a woman entrepreneur,
having higher educational qualifications, support from her
family and the financial resources in the form of retrial
benefits which will be available very shortly. The committee
found her eligible and allotted a plot to her for setting up a
unit in the Estate. The EMP – 2005 under the provisions of
which the allotments have been made, provides for
preferential allotment to women entrepreneurs.
The
Corporation, keeping in view the provision for preference to
the women entrepreneurs, encouraged her to come in the
business and industrial environment and set up an enterprise.
As far as the justification for land requirement which has
been specifically pointed out by the petitioner is concerned,
the respondent proposes to install machinery worth Rs.28.60
lac on the plot size of 1012.50 sq. mtr. She proposes to
construct the building covering 757 sq. mtrs area on this plot.
The requirement of land as such is fully justified.
Respondent is reported to have more than 15 years
professional experience. No doubt that the respondent does
not have any industrial experience, however, she is an
educated woman and even she convinced the committee
about her capabilities and resources for implementation and
smooth running of the project. The Corporation, she being a
women
entrepreneur,
encouraged
her
and
given
an
opportunity to set up a business enterprise.
The respondent is working as Superintendent in a
College.
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He has already incorporated a Private Limited
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Company.
The Committee considering his working
experience and background, allotted a plot to him. As far as
marketing tie up for the product and justification for land
which have been specifically challenged by the petitioner are
concerned, the respondent while applying has already
indicated that there are a number of automobile & its
component manufacturers in Gurgaon and its surrounding
area, who require their product in large quantities. He has
already discussed with various buyers of the components and
they have shown their keen interest to purchase his product.
The applicant proposes to install machinery worth Rs.32.66
lac on a plot size of 1012.50 sq. mtr. He is planning to
construct the building covering 720 sq. mtrs area on the said
plot. The requirement of land is fully justified.
The respondent is an educated person and already
running a hotel business. He is having detailed knowledge
about the product which he proposes to set up. He has shown
a lot of confidence about his project before the committee
during the interview. Keeping in view all these facts, the
committee allotted a plot to him.
As regards the land
justification which has been specifically pointed out by the
petitioner is concerned, the respondent proposes to install
machinery amounting to Rs.38.27 lac on a plot measuring
1800 sq. mtr, which is fully justified.
Both the respondent partners Sh. Rajinder Singh and
Dr. Narinder Singh are educated persons. Though at the time
of allotment, Sh. Rajinder Singh was in service, but he was to
be retired on 31.01.11. As per the terms and conditions of
allotment, any allottee, who is allotted a plot, is required to
set up his unit within the three years period from the date of
allotment of plot. The allotment in this case was made during
the month of August, 2009. It means that the allottee will
have time for implementation of the project upto August,
2012.
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If the applicant, after his retirement, is having
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sufficient time for implementation of the project, he can be
considered for the allotment. The petitioners’ claim that the
plot has been allotted without taking financial resources into
consideration is wrong. One of the partners, as mentioned
above, was going to retire from his services on 31.01.11 and
the retiral benefits will be available to him for setting up the
unit.
Keeping in view all these facts, the committee
considered their case for allotment of plot.
1.
The Corporation considering recession in global
economy, granted one year extension over and
above
3
years
original
implementation of the project.
period
for
It means the
respondent is now having 4 years period instead
of 3 years for implementation of the project,
which will expire in August, 2013.
2.
Sh. Rajinder Singh Hooda, one of the partners,
was working as Branch Manager in Central Cooperative Bank, Rohtak.
3.
He attended a seminar on sickness in cooperative sugar industry for the period from
26.07.2005 to 30.07.2005.
4.
He attended a course on investment of
fund/cash management for investors from
24.06.2002 to 26.06.2002.
5.
He also participated in a programme on
financing small enterprises in rural non-farm
sector for cooperative banks for the period from
25th September to 30th September, 2000.
6.
He had also attended a programme on
Management of non-performing assets for the
period from 2nd August, 1999 to 7th August,
1999.
7.
His brother Sh. Vijender Singh has gifted one
plot measuring 177.77 sq. yards in Jasbir
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Colony, Rohtak to his wife Smt. Chanderkanta.
His brother has also gifted another plot
measuring 155.55 sq. yards located in the same
Jasbir Colony, Rohtak to him. The photocopies
of deed of both the plots have also been
submitted to the Corporation. These documents
have been submitted in support of resources of
the applicant.
The respondent is an educated person. He is B.Sc.,
MBA, MCA and having 7 years experience in the same line
of business. Though the applicant is having less resources,
however, keeping in view the facts that the applicant is
having very good background, sufficient experience and is
already doing business in the same line, the Committee found
him worth to promote and therefore, decided to allot a plot for
his project.
The applicant Sh. Ravinder Singh has been running a
proprietary concern under the name of M/s D.P.Industries
from Kishanpur Sonepat Road, Rohtak.
The firm has
recorded a turnover of Rs.15.10 lac from its job work
activities during the year ending March, 2007. Though the
respondent is having slightly lesser resources, however, he is
having a rich experience in the line.
The respondent is B.A., B.Ed. and having 2 years
experience in the same line of business. She is an educated
woman and wants to come in business by setting up an
industrial project. Petitioners’ claim that the applicant does
not have financial resources for the proposed project is not
correct.
The applicant is having retiral benefits of about
Rs.25 lac which will be utilized for meeting her own
contribution in the proposed project.
As far as land
justification, which has been specifically challenged is
concerned, the respondent proposes to install machinery
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worth Rs.34.15 lac on the plot measuring 1012.50 sq. mtr. for
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the project.
As per the information submitted to the
Corporation, she proposes to construct building covering an
area of about 720 sq. mtrs on this plot. Thus, the requirement
of the land is fully justified. Moreover, there is a preference
for woman entrepreneur in allotment of plots in our present
policy. Accordingly, a preference to the applicant was also
given by the Corporation.
As already mentioned that the respondent is having 2
years experience in the same line of business, she has
submitted a documentary proof in support of her claim for the
experience. As per the certificate, the respondent has been
working in M/s Diamond Automatics which is engaged in the
same line of business and operating its activities from Hisar
Road, Rohtak, as Works Manager from 7th Feb. 2007.
As per the information submitted alongwith the
application, the respondent is having three years supervisory
experience. He has been working in a firm under the name
M/s Sehrawat Engineering Works, which is engaged in the
same line of business which the applicant proposes to set up.
He even submitted an experience certificate to this fact. He
convinced and shown entrepreneurial qualities to the
allotment committee. The committee was impressed with his
performance in the interview and accordingly decided to allot
a plot to him. As far as the justification of the land which has
been specifically challenged by the petitioners is concerned,
which the respondent proposes to install machinery worth
Rs.78.30 lac on the plot having size of 1800 sq. mtrs. As per
the information submitted to the Corporation, he proposes to
construct building covering an area of about 1080 sq. mtrs on
this plot.
The requirement of land which the applicant
submitted to the Corporation is fully justified.
The respondent has submitted some documents and
these indicate that his land which was falling in Village
Kutana itself was under the process of acquisition. Though
the amount of compensation, which he received from the
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Government has not been indicated, however, the same can
be utilized for meeting the cost of project which he proposes
to set up in the Estate.
The respondent is having 17 years experience in the
same line. He has worked with Nirmal Auto Industries for 5
years and even submitted a certificate in confirmation of this
fact. As per certificate issued by the Sarpanch of village to
which the respondent belong, his father is having about 6
acres of land in his name and having about annual income of
Rs.1.50 lac. The Committee found that respondent is having
full knowledge about the product which he has proposed to
manufacture in his unit, and having 17 years working
experience in the same line of activity, decided to allot a plot
measuring 312.50 sq. mtrs to him.
The petitioners have
claimed that the respondent is a tea vendor and running a tea
vending shop.
The Corporation has no record that the
applicant is a tea vendor and running a tea vending shop in
I.E.Rohtak etc.
The respondent is a graduate and having 26 years
experience in the proposed line. He is running a flour mill
and a shop at Kalanaur, Rohtak. During the interview, he
informed that he has achieved a sales turnover of about Rs.4
crores. The applicant is having a long experience in the same
line of business and even already running a flour mill in
Rohtak.
The Committee was fully satisfied about his
credentials and overall performance in the interview, decided
to allot a plot to him for his proposed project. As far as the
marketing tie up which has been specifically pointed out by
the petitioners is concerned, the respondent is already running
a flour mill and marketing its product for so many years, there
is no need for further tie up of the market.
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During the interview, the respondent informed that he
is engaged in the trading of same products for the last 25
years.
He further informed that he has achieved a sales
turnover of about Rs.80 lac during last year.
Since the
applicant is having long 25 years trading experience of the
same product, the committee decided that he must be given an
opportunity to set up a unit for starting manufacturing
activities in the same line of business and accordingly decided
to allot a plot to him.
Petitioners’ claim that he has no
knowledge and working experience in the line is totally
wrong. As far as justification for the land, which has also
been challenged by the petitioners is concerned, the
respondent proposes to install machinery worth Rs.45 lac on a
plot measuring 1012.50 sq. mtrs. As per the building plan
submitted to the Corporation, he proposes to construct
building covering an area of about 607.50 sq. mtrs on this
plot. The request of the respondent for allotment of 1012.50
sq. mtr plot is fully justified.
line. HUDA has acquired his 4 acres land which was in
Sector 37, Rohtak. He got compensation on account of this
acquisition of land.
The committee considering his
experience in the line and resources available in the form of
compensation, found the respondent eligible and allotted a
plot to him.
same line of business. He is already running a flour mill in
Rohtak. Since the respondent is having long experience and
already running a similar flour mill, the Committee found that
the respondent may implement the proposed project and run
the same without any problem and decided to allot the plot.
The respondent proposed to construct shed for plant
and machinery, two godowns for finished goods and one
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godown for storing the raw material etc. Besides this, he also
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proposed to construct a chowkidar room, an office and
parking space etc. The requirement of 1012.50 sq. mtrs size
plot for there construction was fully justified.
The respondent is having 12 years trading experience.
During the interview, he informed that he is having a sales
turnover of about Rs.20 lac p.a. Though he could not submit
the balance sheet in support of his claim, but the Committee
was fully convinced with his capabilities and confidence
about setting up the proposed project.
Accordingly, they
decided to encourage him to enter in the manufacturing field
by setting up a unit.
As per the documents submitted
alongwith the application, the respondent proposes to install
machinery worth Rs.32.65 lac on a plot size of 1012.50 sq.
mtrs. Similarly, he proposed to construct about 6000 sq. ft.
building on this plot.
The requirement of land is fully
justified.
The respondent is having 3 years diploma in
Mechanical Engineering. During the interview, he informed
that his wife is having a commercial property in Sushant Lok
Ph-I Gurgaon. He himself is also having a residential plot in
his name measuring 135 sq. mtrs in Sector 65, Faridabad.
The Committee observed that the respondent is a technically
qualified person and also having sufficient financial resources
for implementation of the project. The committee, keeping in
view these two strong factors, decided to allot a plot to him.
The respondent was appearing as a genuine entrepreneur and
the plot has not been taken for speculations purpose.
The respondent is having 8 years experience. During
the interview, he informed that he is associated with his
family which is engaged in the whole sale business of Bidi
and Cigarette. He further informed that his family business is
having a group turnover of about Rs.4 crores. Petitioners’
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claim that the applicant has no knowledge about running of
any business is wrong. His family is already in wholesale
business and the respondent is fully involved with them and
capable to run a unit.
As far as the balance sheets &
documents which have been specifically pointed out by the
petitioners are concerned, the respondent during the interview
itself submitted the balance sheets of the concerns which
belong to his family. He submitted the balance sheets of M/s
Prem Singh & Co. and M.s Ansh Enterprises. M/s Prem
Singh & Co. has achieved a sales turnover of Rs.2.32 crores
and M/s Ansh enterprises has achieved a sales turnover of
Rs.10.78 lacs during the year 2007-08.
Petitioners have claimed that the plot has been allotted
without asking financial resources, marketing tie up and land
justification etc. Their claim is totally wrong. No doubt M/s
Jhandi Fasteners in which he is a partner is having low
turnover, however, his other business which is Divya Gas
Agency is having a turnover of about Rs.1.70 crores during
the year 2007-08.
Since his Gas Agency business was
running with substantial turnover, the committee did not find
any problem towards his financial health and convinced with
his resources. As far as the justification for land is concerned,
he proposes to install machinery worth Rs.25 lac on a plot
size of 1012.50 sq. mtr. As per the information submitted to
the Corporation, he proposed to construct building covering
an area of about 600 sq. mtrs. on this plot. The requirement
of 1012.50 sq. mts as such is fully justified.
The firm M/s Jhandi Fasteners in which respondent is
a partner running its business since 1989. It is engaged in the
nuts and bolts and doing job work for M/s laxmi Precision
Screws Limited. The firms is also doing job work for another
firm M/s Jai Mata Trading and Manufacturing Co. Since
respondent is already having tie up with these reputed
companies, there is no need for further marketing tie up for its
proposed product.
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Both the respondents who are partners off the firm are
well educated. Sh. Om Parkash Arora is LLB while Smt.
Usha Rani is B.Ed. Sh. Om Parkash Arora is already in share
trading business. As per the information submitted alongwith
his application form, Sh. Om Parkash Arora, one of the
partners of the proposed firm is having resources of RS.24 lac
in the form of retiral benefits etc. The committee was fully
convinced with the capabilities and resources of both the
partners. They shown full confidence about setting up and
running their unit and convinced the committee about the
same.
The committee accordingly, decided to provide an
opportunity for setting up their own manufacturing unit.
Sh. Om Parkash Arora, one of the partners of the
proposed firm is having resources of Rs.24 lac in the form of
retiral benefit etc. The other partner Smt. Usha Rani also
proposed to raise Rs.12 lac from her own funds, friends and
relatives etc. These funds are sufficient to meet their own
contribution of Rs.32.40 lac for setting up their proposed
project.
As far as justification for land is concerned, the
respondents proposed to construct building covering an area
of about 11280 sq. fts on the allotted plot. They proposed to
construct working shed, a godown, finished good shed and
office block etc. The requirement of 1012.50 sq. mtrs plot for
their construction is fully justified as such.
The respondent is a graduate and is already running a
firm under the name M/s HS Industries which is engaged in
the same line of business. He wants to expand his business.
As far as the petitioners’ claim that no any industry under this
name is running at any place at Rohtak is wrong.
The
respondent in his project report which he had submitted
alongwith his application to the Corporation has clearly
mentioned that he is running a unit in the name & style of M/s
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HS Industries from the last two months at Sainik Colony,
19
Hisar Road, Rohtak.
The approximate area which he is
utilizing this unit is about 300 sq. yds. The existing area is
not sufficient and he want to expand his business.
The
respondent is already in business and want to expand the
same.
The Committee relied on the information and
documents submitted by the respondent and allotted a plot to
him.
Both the respondents, who are partners, are in trading
business of hardware goods, having turnover of about 2.70
crores during the year ending 31.03.08.
Their trading is
specifically in Hexgon, all sections of iron and steel bright
shafts, conduit pipes, GI pipes and agriculture implements
etc. They proposed to enter in manufacturing activities of
iron and steel shafts, GI pipes and agriculture equipments etc.
in which they have already been trading for so many years.
The Committee keeping in view their long trading experience
in the line was fully convinced with their capabilities for
implementation and a smooth running of the project and
accordingly, decided to allot a plot to them.
One of the partners, Sh. Hari Krishan Dass was earlier
running a unit under the name M/s Bright Bars & Tubes
Industries, which was engaged in the manufacturing of hand
made pipes and bars etc., operating its business from
residential area in Kathmandi near Tara Hotel, Rohtek. The
firm had achieved a turnover of Rs.3.20 lac during the year
ending March, 2006.
However, due to advancement in
technology, the unit was closed by the respondent.
The respondent Mrs. Raj Singwani is an educated
woman. She is already running a proprietary concern under
the name M/s B.R. Industries, having a turnover of Rs.5.69
lac during the year ending 31.03.07. Petitioners’ claim that
the applicant is not having knowledge about any business and
running an industrial unit is wrong. As already mentioned
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above she is already running a proprietary concern under the
20
name M/s B.R. Industries in Chinyot Colony, Circular Road,
Rohtak. She is having business sense and full knowledge
about the product which she proposes to manufacture in her
unit.
The committee was fully convinced with her
capabilities and allotted a plot to her. She being a woman
entrepreneur was given a preference in allotment as per the
provisions made in the Policy of the Corporation.
The respondent is diploma in Electrical Engineering
and having 20 years trading experience in electrical goods.
He is also Ex-serviceman. He has also served Indian Air
Force for about 20 years for the period from 1980 to 2000. A
documentary proof to this effect has also been submitted to
the Corporation.
The Committee considering that he is a technical
person, having detailed knowledge about the proposed
product and being an ex-serviceman, considered his
credentials and allotted a plot to him. As per the provisions
made in the policy of the Corporation, a preference at the
time of allotment is also given to the Ex-serviceman.
The respondent is having 3 years experience. He is
having property in the form of agriculture land worth Rs.84
lac which can be utilized for implementation of the project.
The committee, keeping in view the facts that respondent is
having detailed knowledge about the product, 3 years
experience and having sufficient resources, decided to allot a
plot to him.
The respondent applicant is a graduate and having 5
years experience in the same line of business. His father got
compensation of about Rs.1.5 crores from the Government on
account of acquisition of his land. The committee observing
that respondent is an educated person, having experience in
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21
the line and full financial support from his family decided to
allot him a plot. The compensation was not only criteria for
the allotment of plot. The committee considered the overall
credentials of the respondent.
The respondent is having two years experience and
associated with Precision turned components. He is having
full financial support from his father. The committee was
fully convinced with his credentials and accordingly, decided
to allot a plot to him. Petitioners’ claim that the plot has been
allotted for speculative purpose is wrong. The Corporation
has allotted the plot only for setting up the project and it has
no control over the speculating activities in the real estate
market.
All the respondents, who are the partners, are having
experience in the line. They are already running a partnership
concern since 2006, which is operating its business from
Mangole Puri Indl. Area, New Delhi. Firm has achieved a
turnover of Rs.14.71 lac during the year ending March, 2008.
Petitioners’ claim that the respondent do not have experience
in the line is wrong. As far as the justification for land which
has also been specifically pointed out is concerned, the
respondent proposes to install machinery worth Rs.25 lac on a
plot of 1012.50 sq. mtr which is fully justified.
The
requirement of land is concerned with the size of the project,
quantum of the machineries to be installed in the unit and
with the size of the building which the respondent proposes to
construct on the plot.
Smt. Sneh Lata, one of the partner is a graduate and
having two years experience. Another partner Sh. Jagdish
Kumar is having 28 years experience, the third partner Sh.
Satish Kumar is having 26 years experience. The 4th partner
Sh. Dharamvir Singh is having 15 years experience.
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The allegations made by the petitioners that the
respondent has no knowledge, working experience in the line
is wrong.
The respondent is having 30 years trading
experience and for the last two years, he has been associated
with a firm which is engaged in the same line of business.
During the interview, he informed that he has achieved a sales
turnover of about Rs.2.00 crores during last year. Though he
could not submit the balance sheet, however, the committee
was fully convinced with his achievements and business
qualities. The Committee, accordingly, decided to allot a plot
to him.
The respondent is having 5 years experience in a Saw
Mill. He is also running a proprietary concern under the
name M/s Timber Store, Rohtak, which is having sales
turnover of about Rs.11.76 lac during the year ending
31.03.2007. Now he wants to enter in the manufacturing of
furniture etc. Petitioners’ claim that the plot was allotted on
the political affiliation is totally wrong. The plot was allotted
only on the basis of his background, experience in the line
and his performance in the interview etc. The requirement of
land is not justified on the basis of sales turnover of the
applicant. The requirement of land is justified on the basis of
the size of the building and the amount which is to be
incurred on the construction of that. Similarly, the machinery
which are to be installed in the unit are also taken into
consideration at the time of analyzing the requirement of land
for the project. In this case, the respondent proposes to invest
Rs.30.00 lac on the construction of building.
The
requirement of 1012.50 sq. mtrs size plot for the investment
of Rs.30 lac on the construction of building is fully justified.
The respondent applicant is B.Tech (IT) and MBA.
Since the respondent is a technically and professionally
qualitified person, the committee considered these credentials
and allotted a plot to him.
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The committee wanted to
23
encourage all those persons who are highly technically and
professionally qualified persons.
EMP – 2005 under the
provision of which the allotment to the respondent was made
provide that the preference will be given to the un-employed
Engineering graduates in allotment of plots.
Since the
respondent is B. Tech (IT) and MBA, a technically qualified
person, the Committee decided to encourage him to set up a
unit and allotted a plot to him.
During the interview, the respondent informed that he
is running a Gas Agency in Rohtak and achieved a turnover
of about Rs.2.25 crores. Though he does not have direct
experience in the line, however, the committee was convinced
with the confidence shown by the applicant and was also
impressed about the achievements of the applicant in his Gas
Agency. The Committee considering the financial strength
and the entrepreneurial qualities of the respondent decided to
allot a plot.
The respondent is a woman entrepreneur and her
husband is having assets of about Rs.20 lac which will help
the respondent in raising her contribution for the proposed
project. The committee considering her financial strength and
she being woman entrepreneur encouraged her to set up a
business enterprise.
The Corporation is already having
provision in its policy for giving the preference to the women
entrepreneur in allotment of plots.
The respondent is having 20 years experience in retail
and wholesale business of medicines. During the interview,
he informed that he has achieved a turnover of about Rs.1.15
crores during the year ending March, 2009 and subsequently
even submitted a balance sheet in confirmation of the same.
Though he does not have direct experience in the line,
however, the committee keeping in view, his overall long
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24
business experience, resources, and entrepreneurial qualities
shown by the respondent, decided to allot a plot to him.
The respondent is having 5 years experience in
business line. He has been engaged in the trading activities
for the last many years. Now he wants to enter into the
manufacturing of proposed product.
He convinced the
committee about his detailed knowledge regarding the project
and shown a lot of confidence in setting up and smooth
running of the project. Petitioners’ claim that the plot was
allotted on the basis of extraneous consideration is totally
wrong.
The respondent is a graduate, having two years
experience. He is having the resources of Rs.11.68 lacs for
raising his contribution in the proposed project.
The
documentary proof for this fact was also submitted to the
Corporation. He is an oustee as the HSIIDC had acquired his
plot in village Kutana itself. Petitioners’ claim that the plot
was allotted on the basis of extraneous consideration is totally
wrong. The committee allotted a plot to him after considering
his overall credentials and resources etc.”
9.
Thus, it was pointed out that the allotments were not only made
in a fair manner, but also made to those, who really deserved it on the
strength of potency of their project. It has been further stated that the
Corporation does not follow the family criteria system as such. There were
no restrictions, which prevent the Corporation, to allot more than one plot in
one family. It was stated in response to allotments made to applicants
bearing token Nos.15, 117, 118, 551 & 660 that these allottees might be
belonging to one family, but they are independent applicants.
The
Corporation considered their credentials separately and when it found them
eligible for the allotment, only then plots were allotted to them.
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25
10.
The petitioners have filed rejoinder controverting the averments
made in the written statement and also gave various instances of
arbitrariness in making allotment of plots.
11.
Some of the private respondents have filed their response
before the arguments were addressed, whereas some filed their response
during the course of hearing and some even after the conclusion of the
arguments. Generally the stand of the successful allottees is that they are
suitable and their suitability has been assessed by the High Powered
Committee. It is pointed out that some of the allottees have set up industries
and have started the manufacturing activities on the plots allotted.
Therefore, any interference at this stage will ruin them financially. There is
no allegation that the successful allottees have concealed or gave wrong
information, therefore, once the Allotment Committee found them suitable,
there is no reason to upset the allotments made.
12.
At the very outset, Mr. Chawla argued that none of the
petitioners are the applicants for the plots having size measuring 4050 sq.
meters, therefore, they cannot be permitted to impugn the allotments made in
respect of such plots.
13.
Before this Court, learned counsel for the petitioners has relied
upon judgments of Hon’ble Supreme Court reported as Common Cause, A
Registered Society Vs. Union of India & others (1996) 6 SCC 530 & V.
Purushotham Rao Vs. Union of India & others (2001) 10 SCC 305 as well as
of this Court in Nardeep Kumar Maheshwari Vs. Indian Oil Corporation
2002 (2) SCT 691; Sewa Ram Vs. Bharat Petroleum Corporation Ltd. &
others 2008 (1) PLR 239; Babbar Bhan & another Vs. State of Haryana &
others 2010 (2) PLR 82 and Jai Narayan Jakhar Vs. Haryana Urban
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26
Development Authority & others (CWP No.9079 of 2013 decided on
25.08.2014) to argue that the allotments made without framing any criteria
and in transparent manner suffer from illegalities. It is also argued that the
touch-stone for allotment was technical feasibility and economic viability,
but no yardstick was adopted to assess the twin tests. Therefore, the basic
criteria for allotment has not been followed by the Corporation.
14.
On the other hand, learned counsel representing the successful
allottees i.e. the private respondents relied upon the judgments of Hon’ble
Supreme Court in Union of India Vs. Rajesh P.U. Puthuvalnikathu (2003) 7
SCC 285 and Inderpreet Singh Kahlon & others Vs. State of Punjab &
others (2006) 11 SCC 356 to argue that the allotments cannot be set-aside
even if some of the allottees may not be suitable.
15.
Learned counsel representing the Corporation has produced the
photocopy of the minutes considering the claim of allotment of the plots by
the Allotment Committee in response to the applications submitted by the
petitioners and the successful allottees.
He relied upon a judgment of
Hon’ble Supreme Court reported as New India Public School Vs. Haryana
Urban Development Authority AIR 1996 SC 3458, wherein it has been
mandated that the public authorities are required to make necessary specific
regulations or valid guidelines to exercise their discretionary powers.
Reference is also made to a Full Bench judgment of this Court in Bareja
Automobiles Pvt. Ltd. Vs. State of Haryana & others (CWP No.2297 of
2007 decided on 17.08.2012). It is also argued that in exercise of the
judicial review, the Court can examine the decision making process and not
the decision itself.
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16.
A perusal of the above averments shows that allotments of plots
to 38 applicants i.e. 5 applicants in respect of 1800 sq. meters plots; 24
applicants in respect of 1012.50 sq. meters plots; 7 applicants in respect of
450 sq. meters plots and 2 applicants in respect of 312.50 sq. meters plots,
are sought to be justified by the Corporation in the written statement. The
averments made in the written statement, as reproduced above, are not the
reasons recorded by the Corporation while making allotment of the plots to
some of the private respondents. The minutes have been recorded by the
Allotment Committee in the tabular form having six columns i.e. (i)
Sr./Token No.; (ii) name & address of the applicant; (iii) Project; (iv) Project
cost; (v) Plot Size applied for & (vi) Remarks/Decision. Thus, it is column
(vi), which gives up the entire decision making process adopted by the
Corporation.
17.
The Corporation has admitted some arbitrariness in the process
of allotment (see para 5 above) though pleading that the selection process
was not unfair. A further perusal of the reasons so given shows that plot
measuring 4050 sq. yards has been allotted to Respondent No.4 i.e. M/s
Ankur Industries, proprietor Mr. Mahesh Kumar Verma (token No.K-2)
though the turnover was only Rs.7.71 lacs during the year ending March,
2008 and had assets of Rs.21.19 lacs in the name of Dheeraj Soni; to
respondent No.34 (K-83) for the reason that he is a farmer, but has
entrepreneurial qualities; to respondent No.22 (K-40) for the reason that he
is a Sarpanch of Village and has the detailed knowledge and entrepreneurial
qualities; to respondent No.84 (K-471) for the reason that both the partners
are educated persons; to respondent No.69 (K-383) for the reason that the
applicant is an Advocate; to respondent No.104 (K-564) for the reason that
the applicant is Principal in a College and due to retire in 2010;
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to
28
respondent No.70 (K-387) for the reason that the applicant is associated with
his family which is engaged in the wholesale business of Bidi and Cigarette.
The said reasoning given does not show that the technical feasibility and
economic viability of the projects submitted by any such applicant to set up
industries was considered and on what parameters. Apart from the said
applicants, we find from the minutes produced that plot measuring 1012.50
sq. meters was allotted to respondent No.58 (K-316) for the reason that he
was running a unit under the name of M/s B.R. Industries for the last two
months; plot measuring 1012.50 sq. meters was allotted to respondent No.57
(K-313), though the applicant having a turnover of Rs.5.69 lacs only during
the year ending 31.03.2007. Similarly, plot has been allotted to respondent
No.63 (K-357) for the reason that the applicant is a post-graduate having net
worth of Rs.21.18 lacs though the total cost of Land, Building and
Machinery was Rs.109.96 lacs. Respondent No.99 (K-548), working as
Superintendent in DAV College, has been allotted a plot measuring 1012.50
sq. meters, who proposes to set up a unit for manufacturing of precision
turned and cold forged automotive. The applicant has not produced the
balance-sheet though the total cost of Land, Building and Machinery is said
to be Rs.104.95 lacs.
18.
The application of M/s Poorva Trading (P) Ltd. (token No.K-
11), was rejected for the reason that the applicant could not explain details
about his resources and even did not submit the documentary proof for his
liquid resources, whereas plots have been allotted to some of the respondents
even without submitting their balance-sheets and on the basis of expected
retiral benefits, which were to be accrued in future. The said applicant had
applied for allotment of 4050 sq. meter plot with cost of land as Rs.110.00
lacs; building as Rs.95.00 lacs and machinery as Rs.110.00 lacs.
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The
29
applicant has relevant experience of its Directors engaged in the Tea
processing unit since 1992.
19.
On the other hand, Pulkit Gupta, Raj Kumar Gupta, 40, IDC
Hisar Road, Rohtak – 124001 (token No.K-15) was found eligible for
allotment of a plot measuring 4050 sq. meters with projected cost of land as
Rs.111.37 lacs; building as Rs.52.00 lacs and machinery as Rs.50.00 lacs,
after the following minutes were recorded:
“Sh. Ritesh Bansal, Manager appeared before the allotment
committee and informed that the applicant Sh. Pulkit Gupta is
running proprietary concern under the name of M/s S.P. Industries
from plot No.40, IDC Hisar Road, Rohtak. It is engaged in the
manufacturing of wire drawing. During the interview, he informed
that the firm has achieved a turnover of RS.1.00 crore, however, no
balance sheet has been submitted in the Corporation. He wants to
expand his business and propose to set up a unit at I.E.Rohtak. The
Committee considering the background, experience and resources,
found the applicant eligible and allotted plot No.125 measuring 4050
sq. mtrs in I.E.Rohtak.”
20.
Similarly, in respect of plot having size of 1800 sq. meters, the
applicant namely A.V.Auto Industries (token No.K-27) with projected cost
of land as Rs.49.50 lacs; building as Rs.18.00 lacs and machinery Rs.16.94
lacs, was found suitable without any documentary proof of availability of
funds.
The Allotment Committee has decided to allot plot No.258
measuring 1800 sq. mtrs in I.E.Rohtak while recording the following
minutes:
“One of the partners Sh. Anil Arora appeared before the
allotment committee and informed that the applicant M/s A.V. Auto
Industries is a partnership firm of Sh. Anil Arora and Smt. Sarita
Jain.
Both are graduates.
Sh. Anil Arora is having business
experience of more than 225 years. He has indicated that he is
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30
having one factory building at Sunaria Road, Rohtak which is having
value of about Rs.25 lacs. In addition to this, he is also having
jewellery of about Rs.2.50 lacs and investment in A.V.Fasteners (P)
Ltd. for Rs.10.65 lacs, however, no documentary proofs in support
of these assets have been submitted. It proposes to set up a unit for
manufacturing of auto components at I.E.Rohtak. The Committee
considering the background, experience and resources, found the
applicant eligible and allotted plot No.258 measuring 1800 sq. mtrs
in I.E.Rohtak.”
21.
Applicant namely M/s Bhatia Photo Industries Pvt. Ltd. (Token
No.K-39) wanted to set up a unit for manufacturing of laptops and its
batteries and LCD panels with machinery costing to Rs.752.00 lacs, but his
claim was rejected when the following minutes were recorded:
“Sh. Harjeet Singh Bhatia, MD of the applicant company
appeared before the allotment committee and informed that he is
B.Com having 18 years experience in this field. The sales turnover
of the existing company M/s Bhatia Photo Industries Pvt. Ltd. is
Rs.367.82 lacs for the years 2007-08. The applicant proposes to set
up a unit for manufacturing of Laptops, LCD Panels and laptop’s
batteries at I.E.Rohtak. The committee considering that the applicant
did not submit documentary proof in support of his resources to
implement the project, found him in-eligible and decided to refund
application money.”
22.
On the other hand, while ignoring the financial capability in
respect of Harinder son of Om Parkash (Token No.K-50), the Allotment
Committee found the applicant as eligible and decided to allot a plot
measuring 1800 sq. meters, when the project cost was Rs.204.81 lacs after
the following minutes were recorded:
“The proprietor Sh. Harinder appeared before the allotment
committee and informed that he is a Matric and is working as
Supervisor in a firm M/s Shrawat Engg. Works, which is operating
its business in Shastri nagar, Hisar Road, Rohtak. He proposes to set
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31
up a unit for manufacturing of precision turned & cold forged
automotive components at I.E.Rohtak. The committee considering
the background, experience and entrepreneurial qualitities, found the
applicant eligible and allotted plot No.173 measuring 1800 sq. mtrs
in I.E.Rohtak.”
23.
Similarly, the Allotment Committee decided to allot an
industrial plot measuring 1012.50 sq. mtrs to Mrs. Raj Sindhwani (Token
No.K-313). While appearing in the interview, she informed the Committee
that she is a graduate and proprietor of M/s B.R. Industries having a turnover
of Rs.5.69 lacs only. The only other asset available with her is a plot
measuring 73.5 sq. yards at Chiniot Colony, Rohtak.
The Allotment
Committee also allotted a plot measuring 1012.50 sq. mtrs to Balwinder
Singh son of Hazur Singh (Token No.K-316) for the reason that the
applicant is a graduate and running a firm under the name M/s
H.S.Industries. A perusal of the minutes recorded shows that the applicant
has not disclosed his turnover or the period of running of the firm, but the
Committee found the applicant eligible and allotted a plot. The Allotment
Committee has also without considering the financial resources and
experience in respect of applicants having Token Nos.K-359 and K-383,
allotted them plots measuring 1012.50 sq. mtrs. In the entire selection
process, the Allotment Committee has not applied any transparent and
objective criteria while making allotment of industrial plots. The minutes,
thus, show that different yardsticks have been applied in respect of different
applicants while making allotment of specific industrial plots.
24.
The basis of allotment of industrial plots was technical
feasibility and economic viability, but the Allotment Committee has not
adopted any intellectual criteria for determining either of them. The plots
have been allotted even though some of the applicants have not produced
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32
even the balance-sheets and also when the building is costing over Rs.30
lacs and the turnover from the existing business is in the range of Rs.5-7
lacs. The trend can be deciphered from the perusal of the minutes i.e. where
the Allotment Committee has decided to allot a plot, the minutes have been
recorded in a particular manner recording that they have found the
background, experience and resources as suitable for allotment of plot and
where the plot was not to be allotted, it has been recorded that the applicant
has not been found suitable. No transparent method of assessing technical
feasibility and economic viability has been culled down or applied. The
Allotment Committee has found as many applicant suitable for plots as were
the plots available i.e. 222. The Committee has not assessed the technical
feasibility and economic viability in respect of the applicants and then draw
of lots was held for allotment of plots. The entire process was tailor-made to
allot plots to the applicants as per whims and fancies of the members of the
Allotment Committee. Though the interviews were held from 04.03.2009 to
10.07.2009 and presuming that the minutes were prepared while assessing
the suitability on the date of interview itself, there was no reason to defer the
allotment of plots till 20.08.2009 i.e. a day before the Assembly was
formally dissolved for elections. Reading between the lines and the manner
of recording of minutes shows that the allotment of plots was made on predetermined basis otherwise; it is unbelievable that the applicant equivalent to
number of plots available could have been found out from almost 1000
applicants for allotment of plots.
25.
In Common Cause’s case (supra), the allotments of petrol
pumps were made by the Minister either on the ground of poverty or
unemployment. The Hon’ble Supreme Court observed as under:
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33
“20. The allotments have been made by the Minister either on the
ground of poverty or unemployment. Assuming that the allottees
belong to either of these two categories then how the Minister has
selected them out of millions of poor and unemployed in this
country. As mentioned above no criteria was fixed, no guidelines
were kept in view, none knew how many petrol pumps were
available for allotment, applications were not invited and the
allotments of petrol pumps were made in an arbitrary and
discriminatory manner.”
26.
The Hon’ble Supreme Court in Akhil Bhartiya Upbhokta
Congress Vs. State of Madhya Pradesh & others (2011) 5 SCC 29, has laid
down the principles while observing to the following effect:
“65.
What needs to be emphasized is that the State and/or its
agencies/instrumentalities cannot give largesse to any person
according to the sweet will and whims of the political entities and/or
officers of the State. Every action/decision of the State and/or its
agencies/instrumentalities to give largesse or confer benefit must be
founded on a sound, transparent, discernible and well defined policy,
which shall be made known to the public by publication in the
Official Gazette and other recognized modes of publicity and such
policy
must
be
implemented/executed
by
adopting
a
nondiscriminatory and non-arbitrary method irrespective of the class
or category of persons proposed to be benefitted by the policy. The
distribution of largesse like allotment of land, grant of quota, permit
licence etc. by the State and its agencies/instrumentalities should
always be done in a fair and equitable manner and the element of
favoritism or nepotism shall not influence the exercise of discretion,
if any, conferred upon the particular functionary or officer of the
State.
66. We may add that there cannot be any policy, much less, a
rational policy of allotting land on the basis of applications made by
individuals, bodies, organizations or institutions de hors an invitation
or advertisement by the State or its agency/instrumentality. By
entertaining applications made by individuals, organisations or
institutions for allotment of land or for grant of any other type of
largesse the State cannot exclude other eligible persons from lodging
competing claim. Any allotment of land or grant of other form of
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34
largesse by the State or its agencies/instrumentalities by treating the
exercise as a private venture is liable to be treated as arbitrary,
discriminatory and an act of favoritism and/or nepotism violating the
soul of the equality clause embodied in Article 14 of the
Constitution.”
27.
In Centre for Public Interest Litigation & others Vs. Union of
India & others (2012) 3 SCC 1, the challenge was to allotment of 2G
Spectrum on ‘first come first serve basis’.
While considering the said
policy, the Hon’ble Supreme Court observed as under:
“95. This Court has repeatedly held that wherever a contract is to be
awarded or a license is to be given, the public authority must adopt a
transparent and fair method for making selections so that all eligible
persons get a fair opportunity of competition. To put it differently,
the State and its agencies/instrumentalities 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.”
28.
Recently, in Manohar Lal Sharma Vs. Principal Secretary &
others 2014 (9) SCC 516, the first coal block judgment, allotments were
found to be unfair, arbitrary and suffering from diverse infirmities and flaws.
The Hon’ble Supreme Court found that the Screening Committee did not
follow any objective criteria in determining that who has to be selected and
who has not to be selected.
The Hon’ble Supreme Court held to the
following effect:
“110.
……..It is not the domain of the Court to evaluate the
advantages of competitive bidding vis-à-vis other methods of
distribution/disposal of natural resources. However, if the allocation
of subject coal blocks is inconsistent with Article 14 of the
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35
Constitution and the procedure that has been followed in such
allocation is found to be unfair, unreasonable, discriminatory, nontransparent, capricious or suffers from favouritism or nepotism and
violative of the mandate of Article 14 of the Constitution, the
consequences of such unconstitutional or illegal allocation must
follow.
xx
137.
xx
Significantly, the guidelines framed and applied by the
Screening Committee for the period from 14-7-1993 (1st meeting) to
19-8-2003 (21st meeting) are conspicuously silent about inter se
priority between the applicants for the same block. In the 18th
meeting, the Screening Committee considered the issue of
determining inter se merit of applicants for the same block as well as
certain other issues for bringing in transparency. The Screening
Committee felt that guidelines for determining inter se priority
among claims for block between public sector and private sector for
captive use and between public sector for non-captive use and
private sector for captive use need to be evolved. However, no
guidelines for determining inter se priority of applicants for the same
block was evolved. The guidelines also do not contain any objective
criterion for determining the merits of applicants and lack in healthy
competition and equitable treatment. In the first counter-affidavit
filed by the Central Government, it is admitted that from the 1st
meeting (held on 14-7-1993) to the 21st meeting (held on 19-82003), the guidelines did not deal with the subject of determining
inter se priority between the applicants.
xx
159.
xx
It needs no emphasis that assuming that the Central
Government had power of allocation of coal blocks yet such power
should have been exercised in a fair, transparent and non-arbitrary
manner. However, the allocation of coal blocks to the private
companies pursuant to the recommendations made by the Screening
Committee in 36 meetings suffers from diverse infirmities and flaws
which may be summarised as follows:
xx
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xx
36
159.2. The guidelines do not contain any objective criterion for
determining the merits of the applicants. The guidelines do not
provide for measures to prevent any unfair distribution of coal in the
hands of few private companies. As a matter of fact, no consistent or
uniform norms were applied by the Screening Committee to ensure
that there was no unfair distribution of coal in the hands of the
applicants.
xx
xx
160. The entire exercise of allocation through Screening Committee
route thus appears to suffer from the vice of arbitrariness and not
following any objective criteria in determining as to who is to be
selected or who is not to be selected. There is no evaluation of merit
and no inter se comparison of the applicants. No chart of evaluation
was prepared. The determination of the Screening Committee is
apparently subjective as the minutes of the Screening Committee
meetings do not show that selection was made after proper
assessment. The project preparedness, track record, etc. of the
applicant company were not objectively kept in view.
xx
163.
xx
To sum up, the entire allocation of coal block as per
recommendations made by the Screening Committee from
14.07.1993 in 36 meetings and the allocation through the
Government Dispensation Route suffers from the vice of
arbitrariness and legal flaws. The Screening Committee has never
been consistent; it has not been transparent; there is no proper
application of mind; it has acted on no material in many cases;
relevant factors have seldom been its guiding factors; there was no
transparency and guidelines have seldom guided it. On many
occasions, guidelines have been honoured more in their breach.
There was no objective criteria, nay, no criteria for evaluation of
comparative merits. The approach had been ad hoc and casual. There
was no fair and transparent procedure, all resulting in unfair
distribution of the national wealth. Common good and public interest
have, thus, suffered heavily. Hence, the allocation of coal blocks
based on the recommendations made in all the 36 meetings of the
Screening Committee is illegal.” (……emphasis supplied)
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37
29.
The judgment rendered in New India Public School case
(supra), referred to by the learned counsel for the Corporation, is of no help
to the arguments raised. In the said case, it has been held that relevant
criteria should be pre-determined by specific rules & regulations or valid
guidelines should have been framed to exercise discretionary powers.
Otherwise, the salutary procedure would be of a public auction. In the
present case, even if the criteria is expected to be available in the
advertisement, but its application is in question. A Full Bench of this Court
in Bareja Automobiles Pvt. Ltd. case (supra), has upheld the allotments
made for the reason that sufficient criteria could be made out from the terms
of the advertisement and was applied while assessing the suitability of the
applicants. In the present case, though the criteria i.e. technical feasibility
and economic viability, background of the applicant etc., finds mention in
the advertisement, but the manner of consideration is suffers from total nonapplication of mind nor the same is based upon any objective and
transparent criteria. Therefore, the reliance of the learned counsel for the
Corporation on the aforesaid judgments is not tenable.
30.
The argument that petitioners be estopped to challenge the
allotments relying upon the judgment of the Full Bench in Bareja
Automobiles Pvt. Ltd. case (supra) is again not tenable. It is not a case,
where the criteria is being disputed, which may attract the doctrine of
promissory estoppel, but the application of the criteria disclosed, which is
subject matter of challenge. The application of the criteria could be known
only after the allotment process is completed. Therefore, the principle of
promissory estoppel cannot be extended to the petitioners in the present
case, as laid down in Bareja Automobiles Pvt. Ltd. case (supra).
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38
31.
Similarly, the argument that in exercise of power of judicial
review, this Court will not substitute its opinion than one framed by the
Allotment Committee, merits consideration. Though this Court will not
substitute its opinion, but it is equally true that the Court will not ignore
arbitrary allotments made to confer benefit to some without adopting a fair
and transparent method of allotment. In Onkar Lal Bajaj etc. Vs. Union of
India & another (2003) 2 SCC 673, the Hon’ble Supreme Court was
considering the media reports regarding allotment of retail outlets of
petroleum products. It was noticed that despite the guidelines laying down
detailed procedure, the allotments were made on account of political
patronage. The Court found that the guidelines can never be a foolproof and
it depends on those who have to follow the same. The Court observed as
under:
“8.
The guidelines laid down a detailed procedure. Despite the
guidelines, according to the media report, certain allotments were on
account of political patronage. In these matter, the guidelines can
never be a foolproof and it depends on those who have to follow the
same. The real question to be considered in these matters is whether
on account of controversy regarding alleged tainted selections of
certain applicants, can the entire selections of all applicants of all
categories made by all selection boards from January 2000 be
annulled.
xx
xx
27. Article 14 guarantees to everyone equality before law. Unequals
cannot be clubbed. The proposition is well settled and does not
require reference to any precedent though many decisions were
cited. Likewise, an arbitrary exercise of executive power deserves to
be quashed is a proposition which again does not require support of
any precedent. It is equally well settled that an order passed without
application of mind deserves to be annulled being an arbitrary
exercise of power. At the same time, we have no difficulty in
accepting the proposition urged on behalf of the Government that if
two views are possible and the Government takes one of it, it would
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39
not be amenable to judicial review on the ground that other view,
according to the Court, is a better view.”
32.
The Hon’ble Supreme Court found that en masse cancellation
of retail outlets for the reason that a controversy has been raised shows that
there was no application of mind to any case.
The Court held to the
following effect:
“34.
In the case in hand, the only reason for the en masse
cancellation was that a ‘controversy’ had been raised. There was no
application of mind to any case. Admitted none of cases was
examined. In Shrilekha Vidyarthi’s case, this Court held that
arbitrariness is writ large on the impugned circular. In the State
action public interest has to be the prime guiding consideration. In
Shrilekha Vidhartyi’s case, it was held that the impugned State
action was taken with only one object in view, i.e., to terminate all
existing appointments irrespective of the subsistence or expiry of the
tenure or suitability of the existing incumbents and that by one
omnibus order, the appointments of all Government counsel in the
State of Uttar Pradesh were terminated. It was also noticed that no
common reason applicable to all of them justifying their termination
in one stroke on a reasonable ground had been shown. The position
is similar in the present case.
35. The expressions ’public interest’ or ’probity in governance’
cannot be put in a State jacket. ’Public interest’ takes into its fold
several factors. There cannot be any hard and fast rule to determine
what is public interest. The circumstances in each case would
determine whether Government action was taken is in public interest
or was taken to uphold probity in governance.
36.
The role model for governance and decision taken thereof
should manifest equity, fair play and justice. The cardinal principle
of governance in a civilized society based on rule of law not only has
to base on transparency but must create an impression that the
decision making was motivated on the consideration of probity. The
Government has to rise above the nexus of vested interests and
nepotism and eschew window dressing. The act of governance has to
withstand the test of judiciousness and impartiality and avoid
arbitrary or capricious actions. Therefore, the principle of
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governance has to be tested on the touchstone of justice, equity and
40
fair play and if the decision is not based on justice, equity and fair
play and has taken into consideration other matters, though on the
face of it, the decision may look legitimate but as a matter of fact,
the reasons are not based on values but to achieve popular accolade,
that decision cannot be allowed to operate.
xx
xx
43. The mere reason that a ‘controversy’ has been raised by itself
cannot clothe the Government with the power to pass such a drastic
order which has a devastating effect on a large number of people. In
governance, controversies are bound to arise. In a given situation,
depending upon facts and figures, it may be legally permissible to
resort to such en masse cancellation where executive finds that
prima facie a large number of such selections were tainted and
segregation of good and bad would be difficult and time consuming
affair. That is, however, not the case. Here the controversy raised
was in respect of 5 to 10%, as earlier indicated. In such a situation,
en masse cancellation would be unjustified and arbitrary. It seems
that the impugned order was a result of panic reaction of the
Government. No facts and figures were gone into.
Without
application of mind to any of relevant consideration, a decision was
taken to cancel all allotments.
The impugned action is clearly
against fair play in action. It cannot be held to be reasonable. It is
nothing but arbitrary.”
33.
Lastly, the Court found that alleged tainted allotments are
required to be scrutinized by an independent committee so as to determine
the validity of circular cancelling the allotments.
34.
Even in, Inderpreet Singh Kahlon’s case (supra), whereby the
selection of all the officers of State Civil Services (Executive) & (Judicial)
cadre were terminated, the Hon’ble Supreme Court observed that the High
Court ought to have made a serious endeavour to segregate the tainted from
the non-tainted candidates. The Hon’ble Supreme Court remitted back the
matter to this Court to consider the following question:
“76.
The principal question which needs to be adjudicated is
whether, in the facts and circumstances of these cases, the
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41
respondents were justified in cancelling the entire selection both of
executive and judicial officers?”
35.
In the present case, since the process of allotment of plots has
been found to be arbitrary without framing any objective, transparent &
rationale criteria, the question; as to whether all the allotments are tainted or
unjustified or only some of them are beneficiary of the largesse, is required
to be examined. In terms of Onkar Lal Bajaj’s case (supra), there are
different options available with this Court so as to constitute a Committee
under the Chairmanship of former Judge of this Court or even direct the
State Government to constitute a Committee of its Officers to re-examine the
process of allotment. We find that since the allotment of plots is based upon
the suitability of applicants for running an industry including its financial
capacity and technical feasibility, the Officers of the State Government alone
are better equipped to examine the said criteria. At this stage, learned
Additional Advocate General, Haryana, has given the list of Officers out of
which the Committee can be constituted.
36.
In view of the above, we deem it appropriate to constitute a
Committee to assess the financial viability and technical feasibility of each
of the applicants, who appeared before the earlier selection committee. The
Committee shall consist of (i) Shri Vijay Vardhan, IAS, Additional Chief
Secretary to Government of Haryana; (ii) Dr. Mahavir Singh, IAS, Principal
Secretary to Government of Haryana; & (iii) Shri Ashwini Kumar,
Additional Director of Industries, Haryana chosen from the list of Officers
given by the learned Additional Advocate General. The said Committee
shall prepare an objective, transparent and fair criteria to assess the
suitability of each of the applicants for the plots on the basis of the
documents filed alongwith their respective applications. If more applicants
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42
than the plots available are found suitable, the Committee shall hold draw
for allotment of plots before making recommendations to this Court. If any
previously successful candidate is found suitable, the Committee shall make
an endeavour to recommend the allotment of the same plot so as maintain
the allotment of plot allotted.
37.
The said Committee shall make an attempt to submit report
within four months to this Court for further necessary action. It shall be open
to the Committee to seek any clarification or direction required to give effect
to the orders passed.
38.
List again on 31.07.2015.
39.
However, till further orders, none of the successful allottees i.e.
respondent Nos.3 to 224 shall sell, create third party interest in any manner
or create any encumbrance over the plots allotted except to carry out their
normal business activities. Wherever, the allottees, who have not started
construction, are restrained from raising construction but where the
construction is in progress, the same shall be completed subject to the
decision of the writ petitions.
40.
These interim measures are subject to the final decision of the
writ petitions without creating any equity or any right in favour of any
person.
(HEMANT GUPTA)
JUDGE
27.03.2015
Vimal
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Chandigarh
(HARI PAL VERMA)
JUDGE

27.03.2015 CWP No.5075 of 2010 Mulakh Raj Dhamija

Transcription

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