2015 (8) TMI 1495 - HC - Indian Laws

Grant of licences and/or the change of land use - grant of license in anarbitrary manner and for illegal consideration - HELD THAT - There are no merit in the argument that the grant of licence on the basis of first come first serve basis is fair, reasonable or transparent method. It is wholly immaterial that the licence is sought in respect of the land owned by them. The fact is that without licence, the Group Housing cannot be set up. The licence is a pre-requisite condition to develop a colony which is a privilege granted by the State and is largesse. In the absence of a licence, a land owner continues 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. 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. Since the licences have been granted on the basis of the doctrine of first come first served basis, which is not a fair, reasonable and transparent method, the licences granted to the private respondents, cannot be sustained - the licences granted to respondent Nos. 4 to 7 are cancelled - Petition allowed.

Summary

Issues Involved:
1. Inquiry into the functioning of the Department of Town and Country Planning, Haryana.
2. Setting aside the order rejecting the petitioners' claim for a grant of license.
3. Legality of granting licenses based on the Draft Development Plan.
4. Fairness and reasonableness of the "first come first served" policy for granting licenses.
5. Compliance with statutory provisions and policies regarding land use and development plans.

Issue-wise Analysis:

1. Inquiry into the Functioning of the Department of Town and Country Planning, Haryana:
The petitioners sought a writ of mandamus for an inquiry into the arbitrary and illegal granting of licenses and change of land use by the Department of Town and Country Planning, Haryana. They alleged that the department favored private respondents by removing deficiencies in their applications while not extending the same treatment to the petitioners.

2. Setting Aside the Order Rejecting the Petitioners' Claim for a Grant of License:
The petitioners' application for a Group Housing Colony license was rejected on 9.11.2010, and their subsequent appeal was dismissed on 20.9.2013. The court found that the petitioners' land was not part of the Final Development Plan as of the application date and that the petitioners did not have a clear title to the land at the time of application. The court upheld the rejection of the petitioners' application, stating that the decision was just and legal.

3. Legality of Granting Licenses Based on the Draft Development Plan:
The court examined whether licenses could be granted based on the Draft Development Plan. It found that the 1975 Act contemplates only the Final Development Plan for considering license applications. Accepting applications based on the Draft Development Plan was deemed "wholly unwarranted, unjustified, illegal, irrational, arbitrary, and against the express provisions of the 1975 Act."

4. Fairness and Reasonableness of the "First Come First Served" Policy:
The court scrutinized the "first come first served" policy for granting licenses and found it to be inherently flawed and unfair. The policy was criticized for involving an element of pure chance or accident, leading to an unholy race among applicants. The court referenced the Supreme Court judgment in the case of Centre for Public Interest Litigation and others v. Union of India and others, which held that public authorities must adopt a transparent and fair method for awarding contracts or licenses to ensure all eligible persons get a fair opportunity.

5. Compliance with Statutory Provisions and Policies:
The court noted that the 1963 Act and the 1975 Act, along with their respective rules, provide a framework for controlled area development and licensing. However, the practice of accepting applications based on the Draft Development Plan was found to be inconsistent with the statutory provisions. The court emphasized that the principle of first come first served was not a fair or reasonable method for granting licenses and called for a more transparent and equitable policy.

Conclusion:
The court allowed the writ petition, canceling the licenses granted to the private respondents. It directed the State Government to consider granting licenses after framing a transparent and fair policy. The judgment highlighted the need for adherence to statutory provisions and the adoption of fair and reasonable methods for granting development licenses, ensuring compliance with the principles of natural justice and transparency.