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TMI Blog1996 (3) TMI 558X X X X Extracts X X X X X X X X Extracts X X X X ..... AIR 1979 SC 1628. The application of the principle and the rule of law makes no difference whether the exercise of power involves affectation of some right or denial of some privilege. The State Government being regulator and dispenser of special services and provider of a large number of benefits, is supposed to act fairly, impartially and in accordance with the provisions of law. 2. The Supreme Court in The Director of Rationing and Distribution v. Corporation of Calcutta, AIR 1960 SC 1355, held, that in our country the rule of law prevails which has been guaranteed in our Constitution by virtue of the provisions contained in other parts. It was further held that it was inherent in the conception of the rule of law that the State, no less than its citizens and others were bound by the laws of the land. The Courts in this country have to follow the ordinary principles of construction that no one is exempted from operation of a statute unless the statute expressly guaranteed the exemption or the exemption arose by necessary implication. In a country which has a written Constitution and where the pattern of Government is democratic, as we have in our country, the one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This Court pertinently drew attention to the basic concept of natural justice vis-a-vis administrative and quasi-judicial enquiries and stated that any decision, whether executive, administrative or judicial or quasi-judicial, is no decision if it cannot be 'just' i.e. an impartial and objective assessment of all the pros and cons of a case, after due hearing of the parties concerned. 4. In the light of the acknowledged position of law as noted hereinabove, we are called upon to determine the constitutionality and legality of the action of the respondents in the matter of allotment of school sites to the respondents in different sectors in Urban Estate, Panchkula. The learned single Judge after holding on facts that I have no hesitation in holding that the policy of pick and choose was adopted and those who were the favourites were allotted the sites without the claims of the applicants including the petitioners having been considered. The whole action is, therefore, illegal, arbitrary and capricious but while granting the relief he refrained from cancelling the allotments made in favour of the private respondents. He, however, issued appropriate directi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation sought included the name of the institution, constitution whether registered or trust or society, its objects, the names and particulars of the Members of the Governing Body, last audit report, financial position, details of similar institutions set up at other places, requirement of land, purpose for which the land was required, requirement of electricity/water supply, land utilisation plan and recommendation of the concerned Deputy Commissioner etc. It was further pointed out that preference shall be given in the order, namely; firstly to Haryana Education Department, secondly to Central Schools Organisations, thirdly to prominent National/regional level institutions and fourthly to existing schools, with good reputation. In response to the advertisement, the writ petitioners as also the private respondents submitted their applications in the prescribed pro forma before the stipulated date. The record of the official respondents reveal that a total number of 72 applications were received. The appellants did not succeed in getting the sites allotted in their favour and the private respondents were selected for the purposes of allotment. Being aggrieved, the appellants filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he children. So far as respondent Tini Tot Nursery School is concerned, it was submitted that the institution was being run by a partnership firm of which one Ms. Charu Tuli hold 40 per cent, share. She was stated to be a post-graduate in English and widow of an Assistant Commissioner of Income Tax. She is stated to have applied for starting a school to permanently settle herself therein in the school. Another partner of the firm is stated to be Ms. Sandhya Dhaka holding 40 per cent, share. She claims to be having teaching experience of preliminary classes for more than six years. She is also stated to be interested in starting the school along with her sister for improving her prospectus in the life. The third partner Shri L. R. Malik had a share to the extent of 20 per cent. He has claimed to be retired Chief Engineer and the other two partners were his daughters. He claimed that he will be looking after the day to day management of the school in an effective manner. All the three partners claimed to have appeared before the Selection Committee constituted by the HUDA on 16-6-1988 and subjected to various questions regarding their educational qualifications and experience. A site ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , IAS, Administrator, Haryana Urban Development Authority; 2. Smt. Keshmi Anand Arora, IAS, Deputy Commissioner, Ambala; 3. Sh. K. K. Sharma, District Education Officer, Ambala; 4. Sh. R. P. Singh, Senior Town Planner, Panchkula; and 5. Shri V. P. Chauhan, HCS, Estate Officer, Haryana Urban Development Authority, Panchkula. The allotment was made on the basis of the credentials of the applicants for running and managing the educational institutions of the type for which the site was applied for. The respondents claimed to be prominent educationalists and having vast experience for supervising the running of Nursery Schools as he had allegedly been looking after the Nursery School at various cantonments in the country on account of his being in the service of the Army. He has claimed to be M.A., B.Ed. and a Lecturer of English Literature from 1954 to 1960. From 1982 to 1985 he remained as Principal of the Sainik School in Bihar. He had also been a member of the Indian Public School Principal's Conference, New Delhi. He retired from the Education Core of the Indian Army w.e.f. 1-12-1989 and in his capacity as a Mem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... objections filed by respondent M/s. Tini Tot School in some of the appeals. Admittedly, all the cross-objections have been filed along with applications under Section 5 of the Limitation Act seeking condonation of delay. 19. The scope of Order 41, Rule 22 of the C.P.C. is to allow the respondents in an appeal to support the decree of the lower Court by asserting that the matter decided against him should have been decided in his favour. Strictly speaking, the provisions of Order 41, Rule 22 of the C.P.C. are not applicable in proceedings arising out of the writ jurisdiction. 20. A Division Bench of the J. and K. High Court in Union of India and others v. Maj. Lalit Kumar, L.P.A. (W) No. 81 of 1992 dealt with the point and held : The cross-objections filed by the respondents are not maintainable under the Letters Patent of this Court. Right to file the cross-objections is a statutory right conferred upon an aggrieved party under Order 41, Rule 22, C.P.C. The cross-objections are supposed to be filed by a party against any part of the decree passed under the Code of Civil Procedure. Filing of cross-objections being the creation of a statute can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he development of the land so acquired is carried out by various departments and bodies like the Public Health Department, B R Department, Electricity Board etc. It has been observed that the involvement of several agencies in the development of urban estates at various places gives rise to problems of co-ordination, with the result that the growth of most of the urban estates become slow and causes unnecessary dissatisfaction among the plot-holders, in particular and the public in general. Further, as the department has to follow the financial rules and regulations of the Government, the arrangement of finances and sanctions of estimates take a long time and the development works have not kept pace with the required physical development of the estates. Being a Government Department, the Urban Estates Department is unable to raise resources from various lending institutions, although, there are various financial institutions in the country willing to finance urban land development programmes which can be made self-financing. In order to overcome all these difficulties and to achieve expeditious development of the estate, it has been felt neces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istered post. It is further provided that for the purposes of proper planning and development of Urban Estate, the land or building may be reserved for groups or individuals or for persons practising any profession or carrying on any occupation, trade or business or for such other category of persons, Government Departments and Institutions, Charitable Institutions and other Organisations of public welfare, as may be decided by the Authority from time to time. 26. Regulation 5 deals with the sale or lease of land or building by auction. The period of lease as contemplated under Regulation is 99 years with effect from the date of allotment or auction as the case may be. 27. The Scheme of the Act and the Regulation envisages the sale or allotment of the land either by open auction or by allotment. It is further contemplated that the allotments are ordinarily required to be made on 'first come first serve' basis. The Authority is, however, to reserve the land for groups or individuals or for persons practising any profession or carrying on any occupation, trade or business or for such other category of persons, Government Departments and Institutions, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Primary School and some Nursery School Sites in Sectors 2, 4, 8, 12, 16, 19, 15 and 21 were also reserved for the Government. Out of the remaining sites for High Schools, none of the applicants was found fit for recommendation of allotment. It was observed that the management of Bhartiya Vidhya Bhawan approached the Committee for allotment of a High School Site tentatively giving the preference for the site in Sector 12, Panchkula keeping in view the reputation of the institution, its credibility, quality of education and the financial position of the institution, the Committee recommended that, the condition that no applicant who had not responded to the advertisement should be considered, be relaxed in this very case . The first departure was, therefore, made in favour of respondent Bhartiya Vidhya Bhawan by allotting in the site for High School even though the said institution had not applied for it. The Committee is stated to have further allotted two primary school sites one in Sector 11 and the other in Sector 12 to the private institutions. The alleged criterion adopted were the good results, reasonable fee, financial position, present students strength and reputation of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m as required under the Regulations was determined before inviting applications; iii) that the applications were not invited in accordance with the procedure prescribed under Regulation 5; iv) that the amount of earnest money was not determined as mandated by Regulation 5(2); v) that no terms and conditions were specified to be applicable upon allotment; vi) that no criterion was determined before initiating the process of allotment; viii) that the Committee was constituted as per some alleged instructions issued by the Authority which were not brought on record or produced before the Court during the pendency of the writ petitions or Letters' Patent Appeals; viii) that the so-called criterion adopted by the Committee was more observed in breach than in compliance; ix) that the criterion adopted was neither reasonable nor proper and did not achieve the object for which the allotments were being made; x) that the allotments are shown to have been made or rejected mainly on the ground of the recommendations of the Deputy Commissioner; xi) that no reason was assigne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were often of specialised and highly technical character. The inadequacy of the civil service to deal with these new problems came to be realised and it became necessary to forge a new instrumentality or administrative device for handling these new problems. It was in these circumstances and with a view to supply this administrative need that the public corporation came into being as the third arm of the Government. As early as 1819 the Supreme Court of the United States of Mac. Culloch v. Maryland, held that the Congress has power to charter corporations as incidental to or in aid of governmental functions and, as pointed out by Mathew, J., in Sukhdev v. Bhagat Ram, ( (1975) 3 SCR 619 :AIR 1975 SC 1331), such federal corporations would ex-hypothesi be agencies of the Government. In Great Britain too, the policy of public administration through separate corporations was gradually evolved and the conduct of basic industries through giant corporations has now become a permanent feature of public life. So far as India is concerned, the genesis of the emergence of corporations as instrumentalities or agencies of Government is to be found in the Government of India Resolution on Industr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e facts taken as a whole could not logically warrant the conclusion of the decision-maker. If the weight of facts pointing to one course of action is overwhelming, then a decision the other way, cannot be upheld. 33. The Supreme Court in G. D. Zalani v. Union of India (1995) 2 JT (SC) 420 :AIR 1995 SC 1178), observed, that while selling public property or granting its lease, the normal method is auction or call for tenders so that all the intending purchasers on lease should have equal opportunity of being submitting their bids and tenders Even there may be exceptional circumstances where adopting of such a course may not be insisted upon . It was further observed that the Government or Authority as the case may be, is required to act fairly in arriving at the best available arrangement in the circumstances. 34. In the instant case, the allotments are appeared to have been made completely in violations of the provisions of the Act and the Regulation. It is further established that the action of the respondents was not fair and proper. The allotment appears to have been made under suspicious circumstances and without adopting any criterion. The Chief Adm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the building during the two years of his service and start running a school soon after his retirement. There could not be anything more arbitrary and perverse than this. It is not necessary to refer to the reasons given in support of the allotment made in favour of all the private respondents, as in my opinion, the whole action of HUDA does not disclose any discernible principle which could be said to have been followed in the matter of allotting the sites. Before this action of HUDA could be upheld, it was necessary for it to disclose some principle or uniform yardstick which it had applied in the matter of selecting candidates for school sites on the basis of which it could be said that the allottees fitted into that yardstick whereas unsuccessful applicants did not. As already stated earlier, no such principle was adopted whereas inconsistencies and arbitrariness are writ large. In these circumstances, I have no hesitation in holding that a policy of Pick and choose was adopted and those who were the favourites were allotted the sites without the claims of other applicants including the petitioners having been considered. The whole action is, therefore, illegal, arbitrary and c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own risk be permitted to urge that such a concession made in his/its favour be regularised even though the initial allotment was made in his/its favour was unconstitutional and illegal. The reply must be emphatically in negative. Accepting such an argument would defeat the interests of justice and depriving the successful litigant in getting the benefit of the orders of the Court passed in their favour. Any clever litigant, as the private respondents are in this case, feeling that their cases were weak but likely to be disposed of after some time, would make such a request and if the lis is decided against them, frustrate the judgments on such pleas. The Courts while exercising writ jurisdiction are not concerned with the consequences' which are likely to arise on account of the determination of the rights of the parties. The Courts are also not concerned with the names or faces or reputation of the parties before it. Once the lis has been decided in accordance with the Constitution and the provisions of law, the consequences would normally follow unless compelling, cogent or valid reasons are shown otherwise. The bona fides of the respondents in the instant case have been pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... struction/building raised by the private respondents herein shall be got determined by the Committee of experts headed by a Chief Engineer; (g) The intending allottees would be intimated that if they succeed in getting the school sites allotted in their favour, they will take its possession along with the building staff and the students who offer to remain in their employment/institutions; (h) In case it is decided to transfer the land by open auction it shall specifically be mentioned in the notice that in case the present allottee succeeds in such auction, they shall be given the benefit of 10 percent, of the bid amount offered by them; (i) Out of the amount realised by sale or lease on account of the price/premium, the erstwhile allottees shall be paid the amount spent by him/it in raising construction of the building at his own risk and responsibility during the pendency of the writ petition as calculated by Expert Committee along with the amount already paid to the H.U.D.A. such a provision would not be applicable where the allottee exercises his option to remove the construction raised by him/it at his/its own risk and responsibility; ..... 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