Punjab-Haryana High Court
Manish Kumar And Others vs State Of Haryana And Others on 12 March, 2025
Bench: Sureshwar Thakur, Vikas Suri
Neutral Citation No:=2025:PHHC:035329-DB
CWP No. 26692 of 2021 (O&M) -1-
In the High Court of Punjab and Haryana at Chandigarh
CWP No. 26692 of 2021 (O&M)
Reserved on: 18.2.2025
Date of Decision: 12.3.2025
Manish Kumar and others ......Petitioners
Versus
State of Haryana and others .....Respondents
CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
HON'BLE MR. JUSTICE VIKAS SURI
Argued by: Mr. Akshay Jindal, Advocate,
Ms. Bhavya Vats, Advocate and
Mr. Mannat Sibal, Advocate
for the petitioners.
Mr. Ankur Mittal, Addl. A.G., Haryana,
Ms. Svaneel Jaswal, Addl. A.G. Haryana,
Mr. Pardeep Prakash Chahar, Sr. DAG, Haryana.
Mr. Saurabh Mago, DAG, Haryana,
Mr. Gaurav Bansal, DAG, Haryana and
Mr. Karan Jindal, AAG, Haryana
for the respondents-State.
Mr. Ankur Mittal, Advocate with
Ms. Kushaldeep Kaur, Advocate,
Ms. Saanvi Singla, Advocate and
Mr. Siddharth Arora, Advocate
for respondents No. 2 and 4.
Mr. Puneet Bali, Senior Advocate with
Mr. Gunjan Rishi, Advocate,
Mr. Gagandeep Singh, Advocate and
Ms. Hanima Grewal, Advocate
for respondent No. 5.
****
SURESHWAR THAKUR, J.
1. Through the instant writ petition, the petitioners seek the
quashing of the revised/replanned layout plan dated 10.5.2012/25.10.2021
(Annexure P-4) for Sector-21, Panchkula. Furthermore, the petitioners also
seek a writ in the nature of prohibition/restraining the respondent
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No. 1 from confirming the e-auction qua Nursing Home site-1, Nursing
Home site-2 and Nursing Home site-3, in front of House No. 1957-P, Sector-
21, Panchkula. In the earlier layout plan, the subject site was initially
declared as nursery and primary school sites, but in the revised layout plan,
it has been declared as Nursing Home site-1, Nursing Home site-2 and
Nursing Home site-3.
Brief facts of the case
2. It is averred in the instant petition, that the petitioners are the
allottees/subsequent purchasers of small residential houses measuring 6
marlas and 10 marlas situated in Sector-21, Panchkula. The said houses of
the petitioners are adjoining, and, opposite to the released land, where a
multi-specialty hospital under the name and style of Alchemist Hospital,
Sector-21, Panchkula is being run. The houses of the petitioners are situated
on a 9 meter road (C-Road) and owing to a huge rush of patients in the
above hospital, there always remain parking problems. It is averred thereins,
that the development plan of Sector-21, since the allotment of plots to the
petitioners till 25.10.2021, thus was depicting that a nursery school site and
a primary school rather would become located adjoining the subject land,
whereas, the supra hospital has been located thereons. The petitioners came
to know qua an e-auction becoming conducted regarding the primary school
site and nursery school site by converting them into three nursing home
sites. Subsequently, the petitioner procured the impugned development
plan, whereins, it has been mentioned that vide endorsement dated
25.10.2021, the nursery and primary school sites (supra) have been
replanned as Nursing Home site-1, Nursing Home site-2 and Nursing Home
site-3, and, it has also been proposed to develop a multiple level parking on
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the said site. The petitioners also received information from the office of
Haryana Shehri Vikas Pradhikaran (for short ‘the HSVP’), that the highest
bids of Nursing Home site-1 and Nursing Home site-2, were given by the
Alchemist Hospital, whereas, the highest bid for Nursing Home site-3 was
given by one Ms. Sunita, however, the instant conversion is required to be
declared to be completely flawed.
Submissions on behalf of the learned counsel for the petitioners
3. The learned counsel for the petitioners submits-
(i) That the exercise of revising/amending the initial layout
plan rather has been conducted at the behest of respondent No. 5, in order to
respectively extend benefit to it/him/her, and, since the e-auction was
conducted in less than a month after the revised layout plan became
approved by the HSVP. Therefore, not only the said amendment was made
in complete violation of the mandate(s) of law as well as to the principles of
natural justice, but also the conducting of the e-auction is ridden with the
vice of sub coloris officio.
(ii) That the respondents concerned, have violated the provisions of
Section 79 of the Haryana Shehri Vikas Pradhikaran Act, 1977 (for short
‘the HSVP Act’) and of Sections 4 and 5 of the Punjab Scheduled Roads and
Controlled Areas Act, 1963 (for short ‘the Act of 1963). He further submits,
that sub-Section (3) of Section 79 of the HSVP Act, provides that before
making any amendments in the plan, the HSVP shall publish a notice calling
for objections and suggestions. Moreover when, Sections 17 and 19 of the
Panchkula Metropolitan Development Authority Act, provisions whereof
become extracted hereinafter, thus deal with the infrastructure development
plan, and, also contemplate the publication of a notice calling for objections
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and suggestions rather before approvals being made, vis-a-vis the
development plan.
“17. (1) The Chief Executive Officer shall, within a period of nine
months from the commencement of this Act and at such intervals
thereafter, as may be prescribed, after such consultations, as may
be specified by regulations, prepare an infrastructure development
plan for the notified area:
Provided that such infrastructure development plan shall be
in conformity with the final plans published under sub-section (7) of
section 5 of the Haryana Scheduled Roads and Controlled Areas
Restriction of Unregulated Development Act, 1963.
(2) The infrastructure development plan shall –
(a) describe and detail the infrastructure development work
and urban amenities, including but not limited to roads, water
supply, sewage disposal, storm water drainage, electricity, solid
waste management, public transportation, parking and other urban
amenities, required for the maintenance of a reasonable standard of
living of residents of the notified area or part thereof:
Provided that nothing in this clause shall apply to any
internal development work under the control and management of
the local authority or internal development work undertaken or
intended to be undertaken, by any owner who has been granted a
licence under sub-section (3) of section 3 of the Haryana
Development and Regulation of Urban Areas Act, 1975 (8 of 1975):
Provided further that the parameters for measuring the
reasonable standard of living of residents shall be such, as may be
determined by the Authority;
(b) specify the right of way requirements for infrastructure
development work under, over, along, across or upon any road or
public street or any property vested in or under the control or
management of the Authority, including but not limited to
electricity, telecommunications, piped natural gas, provided by
entities under a licence issued by or under any State law:
Provided that the right of way requirements shall make
provision for prevention of frequent damage to road and related
infrastructure standing thereon.
(3) The Chief Executive Officer shall cause the infrastructure
development plan to be published on the website of the Authority for
the purpose of inviting objections or suggestions thereon.
(4) Any person, including a member of the Residents Advisory
Council nominated under clause (g) of sub-section (2) of section 11,
may within a period of thirty days from the date of publication of the
plan under sub-section (3) send his objections or suggestions in
writing, if any, in respect of such plan to the Chief Executive Officer
and he shall submit, within a period of sixty days from the aforesaid
date, the infrastructure development plan alongwith his
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recommendations to the Authority.
(5) After considering the objections and suggestions, if any, and
the recommendations of the Chief Executive Officer thereon, the
Authority shall, subject to such modifications, as it deems fit,
prepare final infrastructure development plan and publish the same
on the website of the Authority.
(6) The infrastructure development plan may, from time to time,
as may be required, be modified after following the process
described in sub-sections (3) to (5), in so far as the modification is
concerned
18. x x x x
19. (1) Notwithstanding anything contained in any other State
law for the time being in force, no board, company, agency or
person shall, except in accordance with the infrastructure
development plan, undertake any infrastructure development, within
the notified area of a nature that has been entrusted to the Authority
under this Act or rules or regulations made thereunder.
(2) Any board, company, agency or person desiring to undertake
infrastructure development referred to in sub-section (1) shall
intimate, in writing to the Chief Executive Officer, its proposal for
infrastructure development, in such form and manner, as may be
specified by regulations, alongwith a certificate to the effect that the
proposal is in accordance with the infrastructure development plan:
Provided that the local authority or any owner who has been
granted a licence under sub-section (3) of section 3 of the Haryana
Development and Regulation of Urban Areas Act, 1975 (8 of 1975)
shall not submit a proposal for internal development work to the
Authority: Provided further that the local authority shall inform the
Authority about its intent to undertake any infrastructure
development work other than an internal development work and
such information shall be provided, except when it is of an emergent
nature, at least thirty days prior to the commencement of such
infrastructure development work.
(3) The Chief Executive Officer immediately on the receipt of the
proposal referred to in sub-section (2) but not later than three
working days, shall cause to place the proposal alongwith all
documents submitted, on the website of the Authority.
(4) Any resident of the notified area may, within a period of
twenty-one days from the date on which the proposal was placed on
the website of the Authority under sub-section (3), submit his
objections or suggestions on the proposal to the Chief Executive
Officer.
(5) The Chief Executive Officer shall, within a period of sixty
days from the date on which the proposal was placed on the website
of the Authority under sub-section (3) and after examination of the
objections and suggestions and making such inquiry, as he
considers necessary, either give his concurrence to the proposal or
submit his recommendations alongwith reasons thereof to the5 of 46
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board, company, agency or person submitting the proposal under
sub-section (2).
(6) The concurrence or the recommendations alongwith reasons
thereof referred to in sub-section (5) shall be placed on the website
of the Authority.
(7) If the Chief Executive Officer, while making his
recommendations under sub-section (5) comes to the conclusion
that the proposal has a material and pervasive effect and affects
public interest, he shall proceed forthwith to submit his
recommendations to the Chairperson of the Authority.
(8) The Authority shall, after consideration of the
recommendations of the Chief Executive Officer give such
directions, subject to the provisions of this Act and rules made
thereunder, as it may deem fit and the Chief Executive Officer shall
be bound to act in accordance with such directions.”
(iii) However, it has been contended that none of the supra
provisions became implemented at the instance of the respondent concerned,
wherebys there has been a breach to the principles of natural justice,
whereupon, the impugned layout plan is required to be quashed and set
aside.
(iv) That since at the time of allotment of residential plots to
the petitioners, in the development plan of Sector-21, rather the sites in
question were shown to be reserved for a nursery and a primary school site,
therefore, the HSVP is bound by the principle of promissory estoppel.
(v) That since owing to the existence of supra hospital in
proximity to the residential homes of the present petitioners, thus the
infrastructure is already burdened, thereupons in case more area is provided
for construction of nursing homes, therebys the basic infrastructural facilities
would become collapsed.
4. The learned counsel for the petitioner submits, that the entire
exercise of amending the layout plan, has been malafidely done. Therefore,
it is prayed that the impugned revised layout plan be quashed.
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5. In support of his submissions, the learned counsel for the
petitioners has placed reliance on a judgment rendered by the Apex Court in
case titled as ‘M.C.Mehta versus Union of India and others (SC) reported
in JT 2018 (5) SC 383′. The relevant paragraph of the said judgment
becomes extracted hereinafter.
“15. Again unfortunately, instead of taking the people of Delhi into
confidence with regard to amendments to the Master Plan, a bogey
of public order and rioting has been sought to be communicated to
us as if the law and order situation in Delhi was getting out of
control. We are at a loss to understand the hyper-reaction and how
changes in the Master Plan are sought to be brought about without
any meaningful public participation with perhaps an intent to satisfy
some lobbies and curtailing a period of 90 days to just 3 days on
some unfounded basis. It must be appreciated that the people of
Delhi come first.”
6. On the basis of the judgment (supra), it is contended, that only
if in terms of Sections 4 and 5 of the Act of 1963, provisions whereof
become extracted hereinafter, the respondent concerned, after inviting
objections from the concerned, thus had prepared the layout plan, therebys
alone, the preparation of the impugned layout plan was permissible, thus on
the ground that therebys, there was adherence made to the principles of
natural justice. The said adherence emanates on account of the fact that the
statutorily ordained objections becoming imperatively invited from the
present petitioners, besides prior to the preparation of the layout plan, thus
the said objections becoming rejected through thereons a well drawn
reasoned order becoming made. Consequently, it is vehemently contended
before this Court that the impugned layout plan also breaches the mandate of
law, as declared by the Apex Court in the judgment (supra).
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“4. Declaration of controlled area.
(1) The Government may by notification declare the whole or
any part of any area adjacent to and within a distance of –
(a) eight kilometers on the outer side of the boundary of any
town; or
(b) two kilometers on the outer side of the boundary of any
industrial or housing estate, public institution or an ancient
and historical monument, specified in such notification to be
controlled area for the purposes of this Act.
(2) The Government shall also cause the contents of the
declaration made under sub-section (1) to be published in at least
two newspapers printed in a language other than English.
5. Publication of plans etc. in controlled area.
(1) The Director shall, not later than three months from the
declaration under sub-section (1) of Section 4 or within such
further period as the Government may allow, prepare plans in the
prescribed manner showing the controlled area and signifying
therein the nature of restrictions and conditions proposed to be
made applicable to the controlled area and submit the plans to
the Government.
(2) Without prejudice to the generality of the powers specified
in sub-section (1), the plans may provide for any one or more of
the following matters, namely:-
(a) the division of any site into plots for the erection or re-
erection of any building and the manner in which such plots may
be transferred to intending purchasers or lessees;
(b) the allotment or reservation of land for roads, open spaces,
gardens, recreation grounds, schools, markets and other public
purposes;
(c) the development of any site into a township or colony and the
restrictions and conditions subject to which such development
may be undertaken or carried out;
(d) the erection or re-erection of buildings on any site and the
restrictions and conditions in regard to the open space to be
maintained in or around buildings and the height and character
of buildings;
(e) the alignment of buildings on any site;
(f) the architectural features of the elevation or frontage of
buildings to be built on any site;
(g) the amenities to be provided in relation to any site or
buildings on such site whether before or after the erection or re-
erection of buildings and the person or authority by whom such
amenities are to be provided;
(h) the prohibition or restrictions regarding erection or re-
erection of shops, workshops, ware houses or factories or
buildings of a specified architectural feature or buildings
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designed for particular purposes in any locality;
(i) the maintenance of walls, fences, hedges, or any other
structural or architectural construction and the height at which
they shall be maintained;
(j) the restriction regarding the use of any site for purposes other
than the erection or re-erection of building.
(k) any other matter which is necessary for the proper planning
of any controlled area and for preventing building being erected
or re-erected haphazardly in such area.
(3) The Government may either approve the plans without
modifications or with such modifications as it may consider
necessary or reject the plans with directions to the Director to
prepare fresh plans according to such directions.
(4) The Government shall cause to be published by notification
the plans approved by it under sub-section (3) for the purpose of
inviting objections thereon.
(5) Any person may, within thirty days from the date of
publication of the notification under sub-section (4), send to the
Director his objection and suggestion in writing, if any, in respect
of such plans and the Director shall consider the same and
forward them with his recommendations to the government within
a period of sixty days from the aforesaid date.
(6) The Director shall also give reasonable opportunities to
every local authority, within whose local limits any land included
in the controlled areas is situated, to make any representation
with respects to the plans.
(7) After considering the objections, suggestions and
representations, if any, and the recommendations of the Director
thereon, the Government shall decide as to the final plans
showing the controlled area and signifying therein the nature of
restrictions and conditions applicable to the controlled area and
publish the same in the Official Gazette and in such other manner
as may be prescribed.
(8) Provision may be made by rules made in this behalf with
respect to the form and content of the plans and with respect to
the procedure to be followed, and any other matter in connection
with the preparation, submission and approval of the plans.
(9) Subject to the foregoing provisions of this section, the
Government may direct the Director to furnish such information
as the Government may require for the purpose of approving the
plans submitted to it under this section.”
7. The learned counsel for the petitioners has further placed
reliance on a judgment rendered by a Division Bench of this Court in case
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titled as Innovative Techno Park Private Limited versus State of Haryana
(P&H) (DB) reported in 2018 (4) RCR (Civil) 743, relevant paragraphs
whereof become extracted hereinafter, to contend, that unless the procedure
envisaged in the Act of 1963 became complied with, especially appertaining
to adherence being made to the principles of natural justice, therebys the
conversion of the initial layout plan to the one, as made in the impugned
layout plan rather was grossly impermissible.
“38. Faced with this, the respondents’ contended that the
restrictions in the development plan and the provisions of law do
not apply to the instrumentalities of the State including HUDA,
which is wholly owned, controlled and managed by the Government
of Haryana. This submission was sought to be supported firstly on
the basis of Sections 18 and 24 of the Haryana Development and
Regulation of Urban Areas Act, 1975 which read as under:-
“Section 18: [Nothing in this Act shall affect the power of the
Government, Improvement Trusts, Housing Board, Haryana, [any
local authority or another authority constituted under any law for
the time being in force by the State Government for carrying out the
development of urban area.] to develop land or impose restrictions
upon the use and development of any area under any other law for
the time being in force, [but such power except the power
exercisable by the Government, shall be exercised on payment of
such sum as may be decided by the Government from time to time.]
Section 24. Power to make rules:-
(1) The Government may, by notification in the official gazette,
subject to the condition of previous publication, make rules for
carrying out the purposes of this Act and may give them prospective
or retrospective effect.
(2) In particular and without prejudice to the generality of the
foregoing power, such rules may provide for all or any of the
following matters, namely:-
(a) fee, form and manner of making an application for obtaining
licence under sub-section (1) of section 3 ;
(b) form of licence and agreement under sub-section (3) of section
3;
(c) fee for grant or renewal of licence under sub-section (4) of
section 3;
(d) form of registers to be maintained under section 4 ;
(e) form of accounts to be maintained under sub-section (2) of
section 5 ;
(f) manner of getting the accounts audited under sub-section (2) of
section 6 ;
(g) manner in which preference is to be given to the plot-holders
under sub-section (3) of section 8 ;
(h) form and manner of making application under sub-section (2) of
section 9 ;
[(i) any other matter in connection with preparation, submission and
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approval of plans.]
(2A) In particular and without prejudice to the generality of the
foregoing power and the matters specifically provided for in this
Act, the Government may, by notification in the official Gazette,
make rules for efficient administration of the Board. Such Rules may
provide for all or any of the following matters, namely:-
(i) Prescribing the procedure to be adopted for project
identification, prioritization, public hearing, finalization of scope,
funding and structuring of infrastructure projects, conducting
feasibility analysis, public bidding of the project, concessionaire
selection, negotiation of contract, formation of Special Purpose
Vehicles, execution of concession agreement, implementation and
completion of project as well as its monitoring maintenance and
impact assessment i.e. covering the complete spectrum of project
cycle;
(ii) Prescribing the procedure for project implementation
including determination of tariff, assignments of assets, assessing
feasibility, and viability of finalized infrastructure projects,
termination of concession agreement etc. for successful
implementation of project and its termination in case of violation
of provisions of agreement;
(iii) Prescribing the form and manner in which finance, accounts
and audit of the Board of maintained, conducted and submitted
along with the form and manner in which the annual report of the
Board of prepared and placed and returns are submitted;
(iv) Prescribing the form and manner of furnishing returns,
statements and other particulars as may be decided;
(3) Every rule made under this Act shall be laid, as soon as may
be, after it is made, before the House of the State Legislature,
white it is in session.”]
39. The submission is not well founded. The provisions of law, that
we have referred to, apply equally to HUDA as they apply to others.
The opening words of section 18 “Nothing in this Act shall affect the
power of the Government etc………” (emphasis supplied) themselves
indicate that it is the provision of the 1975 Act that do not affect the
rights of the Government etc. stipulated in Section 18. The section
does not make inapplicable to the Government etc. the provisions of
other Acts with regard to the provisions stipulated in section 18. The
instrumentalities of the State including the HUDA are not excluded
from the purview of these provisions. Section 18 only permits the
entities mentioned therein to develop the land or to impose
restrictions upon use and development of any area under any other
law. Section 18 does not curb the power of the authorities
mentioned therein to impose the restrictions upon the use and
development of any area. Section 18 also provides that nothing
contained in the 1975 Act affects the power of the authorities
mentioned therein to develop the land. The provision for the
preparation of the development plan and the user of the land are
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stipulated under the 1963 Act and not under the 1975 Act. It follows,
therefore, that Section 18 does not entitle the authorities to develop
the land contrary to the users stipulated in the development plan.”
8. Furthermore, the learned counsel for the petitioners has placed
reliance on a judgment rendered by this Court in case titled as Haryana
Urban Development Authority now (HSVP) versus Satish Kumar Dubey
(P&H), reported in 2011(3) PLR 786, whereins, the relevant therein
conversion became dis-countenanced, thus on grounds paramateria to the
grounds raised in the instant petition. Therefore, it is vehemently argued
that the impugned layout plan is required to be quashed and set aside. The
relevant paragraphs of the said judgment are extracted hereinafter.
“16. I have heard learned counsel for the parties, appraised the
paper book, case laws cited at bar and the documents handed over
during the course of hearing and of the view that the revision
petition is liable to be dismissed as the order under challenge does
not call for interference, for, the lower Appellate Court found the
ingredients of Order 39, Rule 1 and 2 CPC i.e. prima facie case,
balance of convenience and irreparable loss in favour of respondent
No.1- plaintiff and the reason is not one but many.
(i) The lower Appellate Court has, in my view, not committed any
illegality in interpreting the provisions of Section 79 of the 1977
Act, which has already been referred to in paragraph 13 of the
impugned order. Section 79 of 1977 Act provides that the Local
Development Authority may make any amendment on the master
plan or the sectoral/zonal/development plan, which it thinks fit
and does not effect important alterations in the character of the
plan and do not relate to the extent of land uses or standards of
population density. But before making any amendment in the
plan, the Local Development Authority or as the case may be, the
State Government shall publish a notice in at least one
newspaper having circulation in the LDA by inviting objections.
The full particulars of such amendments shall be reported to the
State Government within 30 days of the date on which such
amendments came into operation. However, in the instant case,
no such procedure has been followed by the Chief Administrator,
HUDA as vide letter dated 12.02.2018, had passed the following
order:-
“The proposal for carving out alternate petrol pump site in place
of taxi stand at Sector 42, Gurugram, received vide letter under
reference, has been approved by Chief Administrator, HUDA. A
part showing the duly approved site is enclosed herewith for
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information and further necessary action. Zoning plan of the
approved site may also be got finalized and send to this office for
approval on priority.
It is also requested to provide some other site for Taxi Stand in
near vicinity.”
(ii) During the course of hearing, provisions of Rule 2 (d)
pertaining to definitions of Punjab Scheduled Roads and
Controlled Areas Restriction of Unregulated Development Rules,
1963 was referred to demonstrate that ‘development plan’ would
mean the final plan notified in the official Gazette under
subsection 7 of Section 5 of the Punjab Scheduled Roads and
Controlled Areas Restriction of Unregulated Development Act,
1963 and the ‘Sector’ would be any part of the controlled area
indicated as such in the Development Plan and as well as the
provisions of Section 4 of the 1963 Act, which deals with the
power of the Government to publish by notification the plans
approved by it under sub-section (4) for the purpose of inviting
objections. For the sake of brevity, sub-section 4 & 5 of Section 5
of the 1963 Act are reproduced as under:-
“(4) The Government shall cause to be published by notification
the plans approved by it under sub-section (3) for the purpose of
inviting objections thereon.
(5) Any person may, within thirty days from the date of
publication of the notification under sub-section (4), send to the
Director his objection and suggestion in writing, if any, in
respect of such plans and the Director shall consider the same
and forward them with his recommendations to the government
within a period of sixty days from the aforesaid date.”
(iii) A perusal of the aforementioned provisions reveals that same
procedure has been prescribed in the Gurugram Metropolitan
Development Authority Act, 2017. It is yet to be decided whether
the Chief Administrator had the power vis-a-vis the change of use
of the land after promulgation of GMDA Act, 2017, for, the said
Act has already been implemented as per the tender notice
invited by Advisor (Engineering) for and on behalf of the Chief
Executive Officer.
(iv) Both the counsel had argued the matter to such an extent as
if it is a writ petition or regular second appeal but in my opinion,
it is yet to be proved whether the plaintiff would be entitled for
permanent injunction on the grounds stated in the plaint, for,
provisions of the GMDA Act of 2017 and photographs shown at
bar have not been controverted by learned counsel for the
petitioners, thus, it would be domain of the trial Court subject to
proof in accordance with law to adjudicate upon the controversy.
(v) In view of the judgment referred by Mr. Aggarwal in Rajat
Kuchhal and others v. State of Haryana and others (supra),
prima facie, the authority of the Chief Administrator, HUDA was
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held to be wanting, for, it was held that change in the
development plan cannot be done by one stroke of pen by the
Chief Administrator, HUDA. It is also yet to be proved whether
the Chief Administrator, HUDA would have the power or the
Commissioner, Municipal Corporation in view of the decision
rendered in Rajat Kuchhal‘s case (supra) or there has to be
amendment in the Rule as per the procedure prescribed under the
prevailing Act.
(vi) During the course of hearing, it has not also been explained
by the counsel for the petitioners that as to why the area already
earmarked for petrol pump on the 30 mtr wide road as indicated
in the approved site plan cannot be used for shifting the existing
petroleum pump at IFFCO chowk and what was the reason for
converting the taxi stand into a petrol pump, particularly, when
there is already a high pressure petroleum product pipeline
maintained by the authority referred to above, therefore, the
provisions of Order 39, Rule 1 and 2 CPC,in my view, are in
favour of the respondent No.1-plaintiff for adjudication of the
revision petition. Since the pleadings are already completed,
appropriate direction can be issued to the trial Court to expedite
the disposal of the trial particularly when the order of the lower
Appellate Court granting injunction by restraining the defendants
from converting the site earmarked for taxi stand into petrol
pump is in vogue.
17. As an upshot of my finding, the impugned order is upheld and
the revision petition is disposed of with the following directions:-
(a) In case, the issues are not framed, the trial Court shall
undertake an exercise of admission and denial of the
documents, which will curtail the unnecessary evidence, for,
the parties would be leading evidence on the issues which are
at variance.
(b) Since the entire controversy is rested on the basis of the
documentary evidence and the provisions of the Acts and
Regulations referred to herein above, the oral evidence
would not be that essential. However, without taking away
right of either of the parties to examine any oral evidence, I
deem it appropriate to direct the trial Court to give 4-4
effective opportunities to the respondent No.1- plaintiff and
the petitioners-defendants in accordance with law. They will
be at liberty to examine witnesses through the assistance of
the Court by moving application on deposit of process fee
and diet money. The four opportunities may span over a
period of four months from the date of receipt of certified
copy of this order and the trial Court shall expedite the
decision the suit within a period of four months thereafter.
(c) I would be restraining myself from commenting upon the
application of the Policies dated 29.07.2013 and 12.02.2013
with regard to minimum area prescribed for setting up a
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petrol pump on various areas/roads as it would also be proof
of evidence and domain of the trial Court.
(d) anything observed, herein, shall not be construed an
expression of opinion on merits of the suit pending
adjudication.”
9. Therefore, reiteratedly it is contended that the impugned layout
plan smacks of gross arbitrariness, besides of misuse of the executive
powers, as the said layout plan, but is in derogation of the Act of 1963,
rather on the premise, that no adherence becomes made by the respondent
concerned, vis-a-vis the provisions embodied in sub-Section (3) of Section
79 of the HSVP Act. Moreover, the impugned layout plan reiteratedly also
is contended to be breaching the mandate of Sections 17 and 19 of the
Panchkula Metropolitan Development Authority Act, whereins,
contemplations are made, that prior to the making of the infrastructure
development plan, thus a notice is required to be published for therebys
objections and suggestions becoming invited from the aggrieved, especially
before the finalization of the proposed amendment.
Submissions on behalf of the learned counsels for the respondents
10. The learned counsels for the respondents submit-
(i) That the provisions of Section 5 of the Act of 1963 are
not applicable in the instant case, and, the reliance made thereons by the
petitioners is inapt. He further submits, that the Act of 1963, the Haryana
Urban Development and Regulation of Urban Areas Act, 1975 (for short
‘the Act of 1975), and the HSVP Act, thus became enacted for achieving the
ultimate objective of development of infrastructure, but in a regulated
manner.
(ii) That the Chief Administrator, HSVP is the competent
authority to approve zoning plan/layout plan of HSVP lands/sectors, and, is
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also competent to amend/modify any layout plan, at any point of time, if it is
felt that the earlier approved plan rather is not fulfilling its purpose and also
is not found to be feasible, thus owing to any circumstances or current
requirement of the development of the town/city.
(iii) That the HSVP is an autonomous body under the Act,
and, the planning of the land vested under Section 14 of the HSVP Act,
rather is within the exclusive domain of the HSVP.
(iv) That the reliance made on the provisions of Section 79 of
the Act of 1979 is also inconsequential, as the said provisions are not
applicable in the instant case.
(v) That neither any material change nor any amendment to
the layout plan has taken place, and, that the primary school sites and
nursery school sites, as became declared in the initial layout plan, but have
been merely replanned in order to increase the utility of the subject sites,
through creating thereovers three nursing home sites.
(vi) That the petitioners have failed to make a plea as to how
prejudice is caused to them owing to the action of the competent authority
by amending the layout plan (supra). Therefore, in the absence of any
prejudice being caused to the petitioners, therebys they cannot lay a
challenge to the approved layout plan.
(vii) That the petitioners have made the allegations without
any supportive evidence, and, that the e-auction was conducted by HSVP in
a transparent manner according to the provisions of law. Moreover,
respondent No. 5 had already deposited Rs. 50,81,120/- in the year 2021,
and, till date no LOI has been issued to it.
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11. In support of his submissions, the learned senior counsel for
respondent No. 5 has placed reliance on the judgments rendered by the Apex
Court in case titled as (i) State of U.P. versus Sudhir Kumar Singh reported
in (2021) 19 SCC 706, (ii) Dharampal Satyapal Ltd. versus CCE, reported
in (2015) 8 SCC 519 and (iii) Patel Engg. Ltd. versus Union of India,
reported in (2012) 11 SCC 257. The relevant paragraphs of the judgments
(supra) become extracted hereinafter.
(i) State of U.P. versus Sudhir Kumar Singh reported in
(2021) 19 SCC 706
“36. What is important to note is that it is the Court or Tribunal
which must determine whether or not prejudice has been caused,
and not the authority on an ex parte appraisal of the facts. This has
been well-explained in a later judgment, namely Dharampal
Satyapal Ltd. v. Dy. Comm. Of Central Excise, Gauhati and Ors.
(2015) 8 SCC 519, in which, after setting out a number of
judgments, this Court concluded:
“38. But that is not the end of the matter. While the law on
the principle of audi alteram partem has progressed in the
manner mentioned above, at the same time, the courts have
also repeatedly remarked that the principles of natural
justice are very flexible principles. They cannot be applied in
any straitjacket formula. It all depends upon the kind of
functions performed and to the extent to which a person is
likely to be affected. For this reason, certain exceptions to the
aforesaid principles have been invoked under certain
circumstances. For example, the courts have held that it
would be sufficient to allow a person to make a
representation and oral hearing may not be necessary in all
cases, though in some matters, depending upon the nature of
the case, not only full- fledged oral hearing but even cross-
examination of witnesses is treated as a necessary
concomitant of the principles of natural justice. Likewise, in
service matters relating to major punishment by way of
disciplinary action, the requirement is very strict and full-
fledged opportunity is envisaged under the statutory rules as
well. On the other hand, in those cases where there is an
admission of charge, even when no such formal inquiry is
held, the punishment based on such admission is upheld. It is
for this reason, in certain circumstances, even post-
decisional hearing is held to be permissible. Further, the
courts have held that under certain circumstances principles
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of natural justice may even be excluded by reason of diverse
factors like time, place, the apprehended danger and so on.
39. We are not concerned with these aspects in the present
case as the issue relates to giving of notice before taking
action. While emphasising that the principles of natural
justice cannot be applied in straitjacket formula, the
aforesaid instances are given. We have highlighted the
jurisprudential basis of adhering to the principles of natural
justice which are grounded on the doctrine of procedural
fairness, accuracy of outcome leading to general social
goals, etc. Nevertheless, there may be situations wherein for
some reason-perhaps because the evidence against the
individual is thought to be utterly compelling-it is felt that a
fair hearing “would make no difference”-meaning that a
hearing would not change the ultimate conclusion reached by
the decision maker- then no legal duty to supply a hearing
arises. Such an approach was endorsed by Lord Wilberforce
in Malloch v. Aberdeen Corpn. [(1971) 1 WLR 1578], who
said that: (WLR p. 1595)
“… A breach of procedure … cannot give [rise to] a remedy
in the courts, unless behind it there is something of substance
which has been lost by the failure. The court does not act in
vain.”
Relying on these comments, Brandon L.J. opined
in Cinnamond v. British Airports Authority [(1980) 1 WLR
582] that: (WLR p. 593)
“… no one can complain of not being given an opportunity to
make representations if such an opportunity would have
availed him nothing.”
In such situations, fair procedures appear to serve no
purpose since the “right” result can be secured without
according such treatment to the individual.
40. In this behalf, we need to notice one other exception
which has been carved out to the aforesaid principle by the
courts. Even if it is found by the court that there is a violation
of principles of natural justice, the courts have held that it
may not be necessary to strike down the action and refer the
matter back to the authorities to take fresh decision after
complying with the procedural requirement in those cases
where non-grant of hearing has not caused any prejudice to
the person against whom the action is taken. Therefore, every
violation of a facet of natural justice may not lead to the
conclusion that the order passed is always null and void. The
validity of the order has to be decided on the touchstone of
“prejudice”. The ultimate test is always the same viz. the test
of prejudice or the test of fair hearing.
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xxx xxx xxx
42. So far so good. However, an important question posed by
Mr Sorabjee is as to whether it is open to the authority,
which has to take a decision, to dispense with the
requirement of the principles of natural justice on the ground
that affording such an opportunity will not make any
difference? To put it otherwise, can the administrative
authority dispense with the requirement of issuing notice by
itself deciding that no prejudice will be caused to the person
against whom the action is contemplated? Answer has to be
in the negative. It is not permissible for the authority to jump
over the compliance of the principles of natural justice on the
ground that even if hearing had been provided it would have
served no useful purpose. The opportunity of hearing will
serve the purpose or not has to be considered at a later stage
and such things cannot be presumed by the authority.This
was so held by the English Court way back in the year 1943
in General Medical Council v. Spackman [1943 AC 627].
This Court also spoke in the same language in Board of High
School and Intermediate Education v. Chitra Srivastava
[(1970) 1 SCC 121], as is apparent from the following
words: (SCC p. 123, para 7)
“7. The learned counsel for the appellant, Mr C.B. Agarwala,
contends that the facts are not in dispute and it is further
clear that no useful purpose would have been served if the
Board had served a show-cause notice on the petitioner. He
says that in view of these circumstances it was not necessary
for the Board to have issued a show-cause notice. We are
unable to accept this contention. Whether a duty arises in a
particular case to issue a show-cause notice before inflicting
a penalty does not depend on the authority’s satisfaction that
the person to be penalised has no defence but on the nature
of the order proposed to be passed.”
43. In view of the aforesaid enunciation of law, Mr Sorabjee
may also be right in his submission that it was not open for
the authority to dispense with the requirement of principles of
natural justice on the presumption that no prejudice is going
to be caused to the appellant since the judgment in R.C.
Tobacco [(2005) 7 SCC 725] had closed all the windows for
the appellant.
44. At the same time, it cannot be denied that as far as courts
are concerned, they are empowered to consider as to whether
any purpose would be served in remanding the case keeping
in mind whether any prejudice is caused to the person
against whom the action is taken. This was so clarified in
ECIL itself in the following words: (SCC p. 758, para 31)
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“31. Hence, in all cases where the enquiry officer’s report is not
furnished to the delinquent employee in the disciplinary
proceedings, the courts and tribunals should cause the copy of
the report to be furnished to the aggrieved employee if he has
not already secured it before coming to the court/tribunal and
given the employee an opportunity to show how his or her case
was prejudiced because of the non-supply of the report. If after
hearing the parties, the court/tribunal comes to the conclusion
that the non-supply of the report would have made no
difference to the ultimate findings and the punishment given,
the court/tribunal should not interfere with the order of
punishment. The court/tribunal should not mechanically set
aside the order of punishment on the ground that the report was
not furnished as is regrettably being done at present. The
courts should avoid resorting to short cuts. Since it is the
courts/tribunals which will apply their judicial mind to the
question and give their reasons for setting aside or not setting
aside the order of punishment, (and not any internal appellate
or revisional authority), there would be neither a breach of the
principles of natural justice nor a denial of the reasonable
opportunity. It is only if the court/tribunal finds that the
furnishing of the report would have made a difference to the
result in the case that it should set aside the order of
punishment.”
45. Keeping in view the aforesaid principles in mind, even
when we find that there is an infraction of principles of
natural justice, we have to address a further question as to
whether any purpose would be served in remitting the case to
the authority to make fresh demand of amount recoverable,
only after issuing notice to show cause to the appellant. In
the facts of the present case, we find that such an exercise
would be totally futile having regard to the law laid down by
this Court in R.C. Tobacco [(2005) 7 SCC 725] .”
37. In State Bank of Patiala and Ors. v. S.K. Sharma (1996) 3 SCC
364, a Division Bench of this Court distinguished between
“adequate opportunity” and “no opportunity at all”, and held that
the “prejudice” exception operates more especially in the latter
case. This judgment also speaks of procedural and substantive
provisions of law which embody the principles of natural justice
which, when infracted, must lead to prejudice being caused to the
litigant in order to afford him relief, as follows:
“32. Now, coming back to the illustration given by us in the
preceding para, would setting aside the punishment and the
entire enquiry on the ground of aforesaid violation of sub-
clause (iii) be in the interests of justice or would it be its
negation? In our respectful opinion, it would be the latter.
Justice means justice between both the parties. The interests
of justice equally demand that the guilty should be punished
and that technicalities and irregularities which do not
occasion failure of justice are not allowed to defeat the ends
of justice. Principles of natural justice are but the means to
achieve the ends of justice. They cannot be perverted to
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achieve the very opposite end. That would be a
counterproductive exercise.
33. We may summarise the principles emerging from the
above discussion. (These are by no means intended to be
exhaustive and are evolved keeping in view the context of
disciplinary enquiries and orders of punishment imposed by
an employer upon the employee):
(1) An order passed imposing a punishment on an employee
consequent upon a disciplinary/departmental enquiry in
violation of the rules/regulations/statutory provisions
governing such enquiries should not be set aside
automatically. The Court or the Tribunal should enquire
whether (a) the provision violated is of a substantive nature
or (b) whether it is procedural in character.
(2) A substantive provision has normally to be complied with
as explained hereinbefore and the theory of substantial
compliance or the test of prejudice would not be applicable
in such a case.
(3) In the case of violation of a procedural provision, the
position is this: procedural provisions are generally meant
for affording a reasonable and adequate opportunity to the
delinquent officer/employee. They are, generally speaking,
conceived in his interest. Violation of any and every
procedural provision cannot be said to automatically vitiate
the enquiry held or order passed. Except cases falling under –
“no notice”, “no opportunity” and “no hearing” categories,
the complaint of violation of procedural provision should be
examined from the point of view of prejudice, viz., whether
such violation has prejudiced the delinquent officer/employee
in defending himself properly and effectively. If it is found
that he has been so prejudiced, appropriate orders have to be
made to repair and remedy the prejudice including setting
aside the enquiry and/or the order of punishment. If no
prejudice is established to have resulted therefrom, it is
obvious, no interference is called for. In this connection, it
may be remembered that there may be certain procedural
provisions which are of a fundamental character, whose
violation is by itself proof of prejudice. The Court may not
insist on proof of prejudice in such cases. As explained in the
body of the judgment, take a case where there is a provision
expressly providing that after the evidence of the
employer/government is over, the employee shall be given an
opportunity to lead defence in his evidence, and in a given
case, the enquiry officer does not give that opportunity in
spite of the delinquent officer/employee asking for it. The
prejudice is self-evident. No proof of prejudice as such need
be called for in such a case. To repeat, the test is one of
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prejudice, i.e., whether the person has received a fair hearing
considering all things. Now, this very aspect can also be
looked at from the point of view of directory and mandatory
provisions, if one is so inclined. The principle stated under
(4) hereinbelow is only another way of looking at the same
aspect as is dealt with herein and not a different or distinct
principle.
(4)(a) In the case of a procedural provision which is not of a
mandatory character, the complaint of violation has to be
examined from the standpoint of substantial compliance. Be
that as it may, the order passed in violation of such a
provision can be set aside only where such violation has
occasioned prejudice to the delinquent employee.
(b) In the case of violation of a procedural provision, which
is of a mandatory character, it has to be ascertained whether
the provision is conceived in the interest of the person
proceeded against or in public interest. If it is found to be the
former, then it must be seen whether the delinquent officer
has waived the said requirement, either expressly or by his
conduct. If he is found to have waived it, then the order of
punishment cannot be set aside on the ground of the said
violation. If, on the other hand, it is found that the delinquent
officer/employee has not waived it or that the provision could
not be waived by him, then the Court or Tribunal should
make appropriate directions (include the setting aside of the
order of punishment), keeping in mind the approach adopted
by the Constitution Bench in B. Karunakar [(1993) 4 SCC
727]. The ultimate test is always the same, viz., test of
prejudice or the test of fair hearing, as it may be called.
(5) Where the enquiry is not governed by any
rules/regulations/statutory provisions and the only obligation
is to observe the principles of natural justice – or, for that
matter, wherever such principles are held to be implied by
the very nature and impact of the order/action – the Court or
the Tribunal should make a distinction between a total
violation of natural justice (rule of audi alteram partem) and
violation of a facet of the said rule, as explained in the body
of the judgment. In other words, a distinction must be made
between “no opportunity” and no adequate opportunity, i.e.,
between “no notice”/”no hearing” and “no fair hearing”. (a)
In the case of former, the order passed would undoubtedly be
invalid (one may call it ‘void’ or a nullity if one chooses to).
In such cases, normally, liberty will be reserved for the
Authority to take proceedings afresh according to law, i.e., in
accordance with the said rule (audi alteram partem). (b) But
in the latter case, the effect of violation (of a facet of the rule
of audi alteram partem) has to be examined from the
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standpoint of prejudice; in other words, what the Court or
Tribunal has to see is whether in the totality of the
circumstances, the delinquent officer/employee did or did not
have a fair hearing and the orders to be made shall depend
upon the answer to the said query. [It is made clear that this
principle (No. 5) does not apply in the case of rule against
bias, the test in which behalf are laid down elsewhere.]
(6) While applying the rule of audi alteram partem (the
primary principle of natural justice) the
Court/Tribunal/Authority must always bear in mind the
ultimate and overriding objective underlying the said rule,
viz., to ensure a fair hearing and to ensure that there is no
failure of justice. It is this objective which should guide them
in applying the rule to varying situations that arise before
them.
(7) There may be situations where the interests of State or
public interest may call for a curtailing of the rule of audi
alteram partem. In such situations, the Court may have to
balance public/State interest with the requirement of natural
justice and arrive at an appropriate decision.”
35. In M.C. Mehta v. Union of India and Ors. (1999) 6 SCC 237, the
expression “admitted and indisputable facts” laid down in
Jagmohan (supra), as also the interesting divergence of legal
opinion on whether it is necessary to show “slight proof” or “real
likelihood” of prejudice, or the fact that it is an “open and shut
case”, were all discussed in great detail as follows:
“16. Courts are not infrequently faced with a dilemma
between breach of the rules of natural justice and the Court’s
discretion to refuse relief even though the rules of natural
justice have been breached, on the ground that no real
prejudice is caused to the affected party.
xxx xxx xxx
22. Before we go into the final aspects of this contention, we
would like to state that cases relating to breach of natural
justice do also occur where all facts are not admitted or are
not all beyond dispute. In the context of those cases there is a
considerable case-law and literature as to whether relief can
be refused even if the court thinks that the case of the
applicant is not one of “real substance” or that there is no
substantial possibility of his success or that the result will not
be different, even if natural justice is followed. See Malloch v.
Aberdeen Corpn. [(1971) 1 WLR 1578] (per Lord Reid and
Lord Wilberforce), Glynn v. Keele University [(1971) 1 WLR
487], Cinnamond v. British Airports Authority [(1980) 1
WLR 582] and other cases where such a view has been held.
The latest addition to this view is R. v. Ealing Magistrates’
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court, ex p Fannaran [(1996) 8 Admn LR 351, 358] (Admn
LR at p. 358) (see de Smith, Suppl. p. 89) (1998) where
Straughton, L.J. held that there must be “demonstrable
beyond doubt” that the result would have been different. Lord
Woolf in Lloyd v. McMahon [(1987) 2 WLR 821, 862] (WLR
at p. 862) has also not disfavoured refusal of discretion in
certain cases of breach of natural justice. The New Zealand
Court in McCarthy v. Grant [1959 NZLR 1014] however
goes halfway when it says that (as in the case of bias), it is
sufficient for the applicant to show that there is “real
likelihood – not certainty – of prejudice”. On the other hand,
Garner Administrative Law (8th Edn., 1996, pp. 271-72) says
that slight proof that the result would have been different is
sufficient. On the other side of the argument, we have apart
from Ridge v. Baldwin [1964 AC 40], Megarry, J. in John v.
Rees [(1969) 2 WLR 1294] stating that there are always
“open and shut cases” and no absolute rule of proof of
prejudice can be laid down. Merits are not for the court but
for the authority to consider. Ackner, J. has said that the
“useless formality theory” is a dangerous one and, however
inconvenient, natural justice must be followed. His Lordship
observed that “convenience and justice are often not on
speaking terms”. More recently Lord Bingham has
deprecated the “useless formality” theory in R. v. Chief
Constable of the Thames Valley Police Forces, ex p Cotton
[1990 I RLR 344] by giving six reasons. (See also his article
“Should Public Law Remedies be Discretionary?” 1991 PL,
p. 64.) A detailed and emphatic criticism of the “useless
formality theory” has been made much earlier in “Natural
Justice, Substance or Shadow” by Prof. D.H. Clark of
Canada (see 1975 PL, pp. 27-63) contending that Malloch
[(1971) 1 WLR 1578] and Glynn [(1971) 1 WLR 487] were
wrongly decided. Foulkes (Administrative Law, 8th Edn.,
1996, p. 323), Craig (Administrative Law, 3rd Edn., p. 596)
and others say that the court cannot prejudge what is to be
decided by the decision-making authority de Smith (5th Edn.,
1994, paras 10.031 to 10.036) says courts have not yet
committed themselves to any one view though discretion is
always with the court. Wade (Administrative Law, 5th Edn.,
1994, pp. 526-30) says that while futile writs may not be
issued, a distinction has to be made according to the nature
of the decision. Thus, in relation to cases other than those
relating to admitted or indisputable facts, there is a
considerable divergence of opinion whether the applicant
can be compelled to prove that the outcome will be in his
favour or he has to prove a case of substance or if he can
prove a “real likelihood” of success or if he is entitled to
relief even if there is some remote chance of success. We24 of 46
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may, however, point out that even in cases where the facts
are not all admitted or beyond dispute, there is a
considerable unanimity that the courts can, in exercise of
their “discretion”, refuse certiorari, prohibition, mandamus
or injunction even though natural justice is not followed. We
may also state that there is yet another line of cases as in
State Bank of Patiala v. S.K. Sharma [(1996) 3 SCC 364],
Rajendra Singh v. State of M.P. [(1996) 5 SCC 460] that
even in relation to statutory provisions requiring notice, a
distinction is to be made between cases where the provision
is intended for individual benefit and where a provision is
intended to protect public interest. In the former case, it can
be waived while in the case of the latter, it cannot be waived.
23. We do not propose to express any opinion on the
correctness or otherwise of the “useless formality” theory and
leave the matter for decision in an appropriate case,
inasmuch as, in the case before us, “admitted and
indisputable” facts show that grant of a writ will be in vain as
pointed out by Chinnappa Reddy, J.”
(ii) Dharampal Satyapal Ltd. versus CCE, (2015) 8
SCC 519 and
“38. But that is not the end of the matter. While the law on
the principle of audi alteram partem has progressed in the
manner mentioned above, at the same time, the Courts have
also repeatedly remarked that the principles of natural
justice are very flexible principles. They cannot be applied in
any straight-jacket formula. It all depends upon the kind of
functions performed and to the extent to which a person is
likely to be affected. For this reason, certain exceptions to the
aforesaid principles have been invoked under certain
circumstances. For example, the Courts have held that it
would be sufficient to allow a person to make a
representation and oral hearing may not be necessary in all
cases, though in some matters, depending upon the nature of
the case, not only full-fledged oral hearing but even cross-
examination of witnesses is treated as necessary concomitant
of the principles of natural justice. Likewise, in service
matters relating to major punishment by way of disciplinary
action, the requirement is very strict and full-fledged
opportunity is envisaged under the statutory rules as well. On
the other hand, in those cases where there is an admission of
charge, even when no such formal inquiry is held, the
punishment based on such admission is upheld. It is for this
reason, in certain circumstances, even post-decisional
hearing is held to be permissible. Further, the Courts have
held that under certain circumstances principles of natural
justice may even be excluded by reason of diverse factors like
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time, place, the apprehended danger and so on.
39. We are not concerned with these aspects in the present
case as the issue relates to giving of notice before taking
action. While emphasising that the principles of natural
justice cannot be applied in straight-jacket formula, the
aforesaid instances are given. We have highlighted the
jurisprudential basis of adhering to the principles of natural
justice which are grounded on the doctrine of procedural
fairness, accuracy of outcome leading to general social
goals, etc. Nevertheless, there may be situations wherein for
some reason – perhaps because the evidence against the
individual is thought to be utterly compelling – it is felt that a
fair hearing ‘would make no difference’ – meaning that a
hearing would not change the ultimate conclusion reached by
the decision-maker – then no legal duty to supply a hearing
arises. Such an approach was endorsed by Lord Wilberforce
in Malloch v. Aberdeen Corporation, (1971) 1 WLR 1578 at
1595, who said that a ‘breach of procedure…cannot give (rise
to) a remedy in the courts, unless behind it there is something
of substance which has been lost by the failure. The court dos
not act in vain’. Relying on these comments, Brandon LJ
opined in Cinnamond v. British Airports Authority, (1980) 1
WLR 582 at 593 that ‘no one can complain of not being given
an opportunity to make representations if such an
opportunity would have availed him nothing’. In such
situations, fair procedures appear to serve no purpose since
‘right’ result can be secured without according such
treatment to the individual.”
(iii) Patel Engg. Ltd. versus Union of India, reported in
(2012) 11 SCC 257
“23. From the impugned order it appears that the 2nd
respondent came to the conclusion that; (1) the petitioner is
not reliable and trustworthy in the context of a commercial
transaction; (2) by virtue of the dereliction of the petitioner,
the 2nd respondent suffered a huge financial loss; and (3) the
dereliction on the part of the petitioner warrants exemplary
action to “curb any practice of ‘pooling’ and ‘mala fide’ in
future”.
24. We do not find any illegality or irrationality in the
conclusion reached by the 2nd respondent that the petitioner
is not (commercially) reliable and trustworthy in the light of
its conduct in the context of the transaction in question. We
cannot find fault with the 2nd respondent’s conclusion
because the petitioner chose to go back on its offer of paying
a premium of L 190.53 crores per annum, after realising that
the next bidder quoted a much lower amount. Whether the
decision of the petitioner is bona fide or mala fide, requires a
further probe into the matter, but, the explanation offered by
the petitioner does not appear to be a rational explanation.
The 2nd respondent in the impugned order, while rejecting
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the explanation offered by the petitioner, recorded as
follows:
“Further the fact remains that clarification/amendments
communicated by NHAI were ‘minor’ and cannot be
attributed as a cause for occurrence of an ‘error’ of ‘major’
nature and magnitude. With project facilities clearly spelt out
in the RFP document, the project cost gets frozen well in
advance and similarly traffic assessment & projections,
which largely impact the financial assessment, are also not
expected to be left for last few days of bid submission.
Therefore stating that an ‘error’ of this nature and magnitude
occurred is neither correct nor justified……… ”
25. We cannot say the reasoning adopted by the 2nd
respondent either irrational or perverse. The dereliction,
such as the one indulged in by the petitioner, if not handled
firmly, is likely to result in recurrence of such activity not
only on the part of the petitioner, but others also, who deal
with public bodies, such as the 2nd respondent giving scope
for unwholesome practices. No doubt, the fact that the
petitioner is blacklisted (for some period) by the 2nd
respondent is likely to have some adverse effect on its
business prospects, but, as pointed out by this Court
in Jagdish Mandal v. State of Orissa and others, (2007) 14
SCC 517:
“Power of judicial review will not be invoked to protect
private interest at the cost of public interest, or to decide
contractual disputes.”
The prejudice to the commercial interests of the petitioner, as
pointed out by the High Court, is brought about by his own
making. Therefore, it cannot be said that the impugned
decision of R-2 lacks proportionality.
26. Coming to the submission that R-2 ought to have given an
oral hearing before the impugned order was taken, we agree
with the conclusion of the High Court that there is no
inviolable rule that a personal hearing of the affected party
must precede every decision of the State. This Court in Union
of Indian and another v. Jesus Sales Corporation, (1996) 4
SCC 69, held so even in the context of a quasi-judicial
decision. We cannot, therefore, take a different opinion in the
context of a commercial decision of State. The petitioner was
given a reasonable opportunity to explain its case before the
impugned decision was taken.
27. We do not see any reason to interfere with the Judgment
under Appeal. The S.L.P. is, therefore, dismissed.”
Inferences of this Court
12. In the wake of the above contentions of the learned counsels for
the parties, it is but required to be determined whether the supra extracted
statutory provisions, rather are or are not applicable to the facts at hand.
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13. The principles, which can be succinctized, from the expositions
of law made in the judgments (supra), are inter alia (i) that the requirements
of adherence being made to natural justice, thus are dependent upon the facts
and circumstances of each case. In other words, there cannot be any rigidly
cast straight-jacket formula vis-a-vis the necessity of adherence being made
to the principles of natural justice, especially when for want of adherence
being made to the principles of natural justice, thus the executive decisions
are impugned before the High Court. (ii) Ex facie, the jurisprudential basis
for the adherence being made to the principles of natural justice, do become
grounded, on the doctrine of procedural fairness, accuracy of outcome
leading to general social goals, etc. (iii) Moreover, such adherence is
required to be more rigorously insisted, upon, in case the apposite decision
making process becomes embarked into by the Courts of law or by the
authority(ies), who exercises quasi judicial functions.
14. The supra necessity becoming aroused in those lis’, whereins,
an acerbic contest emerges on the contentious assertions of the litiganting
parties, wherebys not only the procedural proprieties, rather for therebys
ensuring adherence being made to the principles of natural justice, but
require a rigorous adherence thereto, but also, the consequent thereto
assignings of adequate opportunities to the contesting litigants, thus to
adduce evidence on the relevant contentious issues, does concomitantly
become a dire necessity.
15. Resultantly in the supra genre of lis’ the wants of prejudice
accruing to the litigants affected by the decision but would be of no
relevance.
16. However, yet the rule or test of prejudice becoming proven to
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be encumbered, by apposite executive decision(s), though becomes also
exposited in the verdicts (supra), to somehow being construable rather to be
an exception, to the necessity of strictest adherence being made to the
principles of natural justice.
17. Nonetheless, qua the said factual scenario, there yet cannot be
any rigidly formulated straight-jacket formula. The reason for stating so
becomes grooved in the factum, that unless the statutory provisions omit to
entail a necessity upon the executive to adhere to the principles of natural
justice, therebys if the executive decision is yet made but without adherence
being made to the principles of natural justice, thereupons, the rule of
prejudice becoming encumbered upon the aggrieved, who however is also
not a party to the lis, nor is a party to the executive decision making process,
thus emerges to the forefront. Resultantly therebys, the aggrieved has to
bring-forth thus telling evidence, that the outcome of the lis has severely
prejudiced his rights over such disputed lands, over which he otherwise is
not directly invested with any right, title and interest, but only has some
incorporeal rights thereovers.
18. Nonetheless, insofar as the instant factual scenario is concerned,
the impugned decision if imperatively required, as argued by the learned
counsel for the petitioners, that prior thereto objections and suggestions, thus
purportedly in terms of the supra statutory provisions, thus were statutorily
required to be elicited, from the present petitioners, and, yet theirs not being
either elicited, nor any speaking decision becoming made thereons, therebys
alone this Cout would proceed to accept the submissions addressed before
this Court by the learned counsel for the petitioners. In the said regard, it is
also necessary to incisively dwell upon the import of the provisions
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embodied in Sections 4 and 5 of the Act of 1963. However, before
proceeding to do so, it is necessary to bear in mind the objects and reasons
for the said enactment becoming made. The relevant objects and reasons for
the making of the said enactment was apparently to prevent a haphazard and
sub-standard development on the scheduled road, and, in the controlled areas
in the State of Haryana. Now for determining whether the supra stated
objects and reasons behind the passing of the supra legislation, thus become
proven to be breached, it was but necessary for the learned counsel for the
petitioners to initially make out a case, that a declaration in terms of Section
4 of the Act of 1963 became passed, wherebys the subject sites became
declared to be a controlled area, whereafters alone in terms of Section 5 of
the Act of 1963, the government became bestowed with a discretion to
prepare plans in the prescribed manner, wherebys became regulated the
infrastructure laying mechanism(s) on the sites concerned. Therefore, the
learned counsel for the petitioners became enjoined to place on record, the
notification issued under Section 4 of the Act of 1963, wherebys the subject
sites became declared to be a controlled area. However, the said notification
remains omitted to be placed on record. The effect of non-placing on record
of the said notification leads to an inference, that the provisions of the Act of
1963, rather were not applicable to the subject sites, nor therebys any
statutory necessity became cast upon the respondent concerned, to before
finalizing the impugned layout plan, thus invite scribed objections and
suggestions from the aggrieved, nor for the supra omission there was any
violation to the principles of natural justice.
19. If so, with the statute omitting to make any explicit speaking
qua in the said manner adherence being made to the principles of natural
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justice, therebys the apposite exception to adherence being made to the
principles of natural justice, became aroused. The said exception thus
becomes grooved in the factum, that therebys there was a necessity for the
present petitioners, to prove palpable prejudice becoming wreaked, vis-a-vis
their incorporeal rights over the subject sites being jeopardized.
20. However, for the further reasons, as detailed hereinafter, rather
no purported prejudice becomes encumbered upon the present petitioners,
vis-a-vis their incorporeal rights, vis-a-vis the subject sites, as no cogent
material in respect thereof becomes placed on record.
21. Be that as it may, though in view of the supra summarization(s)
of the principles, as culled from the judgments (supra), there cannot be any
strictly cast straight-jacket formula, thus for ensuring adherence being made
to the principles of natural justice. However, when as stated (supra), when
for breach, if any, being caused to the rules of natural justice, did yet require
the proven wreakings of prejudice to the aggrieved concerned, especially
when the statutory rules, do not entail any obligation upon the respondents
concerned, to adhere to the principles of natural justice. Therefore, when in
the instant case, this Court has stated that sub-Section (5) of Section 5 of the
Act of 1963, thus mandating that prior to the finalization of the layout plan,
there was a necessity of objections being invited from the aggrieved, rather
is not applicable, on the ground, that no statutory declaration was made in
terms of Section 4 of the Act of 1963. Resultantly therebys, the effect of
non-application of the said provisions, to the subject sites, unless the vires of
the said sub-Section became challenged, which however, has not been done,
but is that, qua therebys there is a preemption or a foreclosure of any right of
personal hearing to the aggrieved. Consequently, the present petitioners
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cannot constrain this Court that yet the impugned layout plan is required to
be quashed and set aside, unless palpable prejudice becomes provenly
encumbered upon the present petitioners, especially, vis-a-vis their
incorporeal rights over the subject sites, which however for the reasons to be
assigned hereafter rather has not been so demonstrated.
22. In other words, the provisions, as embodied in the Act of 1963,
thus are completely inapplicable to the facts at hand. The reasons for stating
so, as become underscored from the above discussion inter alia are-
(i) That from the contemplations made in Section 4 of the Act
of 1963, provisions whereof become extracted hereinabove, whereins, it
becomes expressedly stated, that the government is required to be making a
notification whereby it declares, any area outside the limits of the municipal
town or any other area, which in its opinion, has the potential for building
activities, industrial, commercial, institutional, recreational estates etc., thus
to be controlled area.
(ii) Therefore, for making applicable the said provisions to
the instant facts, such material was required to be existing on record, thus
manifesting that in terms of the said provisions, a notification became issued
by the respondent concerned, wherebys the subject sites also became
declared to be a controlled area.
(iii) However, reiteratedly since it is fairly conceded, before
this Court, by all the concerned that no such declaration in terms of Section
4 of the Act of 1963, became made by the government.
23. Therefore, reiteratedly since the precursor, for the applicability
of the Act of 1963 but is the making of a notification in terms of Section 4
thereof. However, when the said notification is not made, thus declaring the
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subject sites to be a controlled area. In sequel, the provisions of Section 4 of
the Act of 1963 are inapplicable to the facts at hand, nor therebys if any
provisions thereof became breached at the instance of the respondents
concerned, therebys there is no merit in the submissions made by the learned
counsel for the petitioners, that as such, the instant conversion is
impermissible, nor he can make any argument erected upon the judgments
(supra) that the relevant conversion is ridden with vices of gross arbitrariness
or excess of executive fiat, or qua the same becomes ridden with a vice of
sub coloris officio.
24. The reason for stating so stems from the factum, that the
Hon’ble Supreme Court and this High Court respectively, had declared the
thereins drawings of the relevant plans to be suffering from a gross infirmity,
but on the ground that therebys there was a palpable breach caused to the
relevant therein statutory provisions. However, since in the instant case,
though breach is alleged to be made by the respondents concerned, to the
provisions, as become engrafted in the Act of 1963, to the extent that prior to
the finalization of the layout plan, there was a requirement of adherence
being made to the principles of natural justice by the respondents concerned,
through theirs inviting written objections, from the present petitioners,
whereas, the said objections becoming not invited, therebys the impugned
layout plan is liable to be declared to be non est. However, since this Court
has hereinabove yet underscored the fact, that the said breaches would be of
somber/utmost relevance, only when a notification in terms of Section 4 of
the Act of 1963 became made, thus declaring the subject sites to be a
controlled area. Moreover since it has also been stated above, that the said
notification became not issued, as such, when therebys the other provisions
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also requiring adherence thereto being made, rather also did not emerge to
the forefront. Therefore, the Act of 1963 is completely inapplicable to the
facts at hand, nor the judgments (supra) are applicable to the facts at hand,
especially when instantly there are statutory foreclosures against adherence
being made to the principles of natural justice. Predominantly also, when the
vires of the said statutory foreclosures remains unchallenged before this
Court.
25. Now irrespective of a notification in terms of Section 4
becoming not made wherebys the subject lands were thus declared to be
controlled area, wherebys, the other statutory provisions’ envisaging the
makings of adherence to the principles of natural justice by the respondents
concerned, through theirs’ prior to the finalization of the impugned plan,
rather inviting objections from the aggrieved concerned, thus may have
emerged to the forefront, rather the trite fact that, Section 24 of the Act of
1963, embodies a savings clause, provisions whereof become extracted
hereinafter, thereupon the said saving clause assumes grave/somber
relevance.
“24. Savings.
Nothing in this Act shall affect the power of the Government or any
other authority to acquire land or to impose restriction upon the use
and development of land comprised in the controlled area under any
other law for the time being in force, or to permit the settlement of a
claim arising out of the exercise of powers under this Act by mutual
agreement.”
26. A circumspect reading of the above savings clause, discloses
that thereins becomes ordained that all the provisions embodied in the Act of
1963, rather shall not restrict, nor affect the powers of the government or any
other authority to acquire land or to impose restriction upon the use and
development of land comprised in the controlled area under any other law
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for the time being in force, or to permit the settlement of a claim arising out
out of the exercise of powers under this Act by mutual agreement.
27. Therefore, the effective import of the said savings clause, as
carried in the Act of 1963, is that, the power of the respondent or of the
HSVP to make acquisitions of any land or to impose restrictions upon the
user of the subject sites, which also may become exerciseable over
controlled areas, but remaining saved or becoming preserved. Moreover
since in terms of sub-Section (2) of Section 15 of the HSVP Act, provisions
whereof become extracted hereinafter, the HSVP becomes empowered to
dispose of the subject sites even by way of sale, exchange or lease. In
addition, when in terms of sub-Section (3) of Section 15 of the HSVP Act,
provisions whereof also become extracted hereinafter, thus an empowerment
is bestowed upon the HSVP to make sale, lease or make transfers of the
subject lands by auction, allotments or otherwise.
“15. Disposal of land.
(1) x x x x
(2) Nothing in this Act shall be construed as enabling the
[Pradhikaran] [Substituted ‘Authority’ by Haryana Act No. 28 of
2019, dated 2.8.2019.] to dispose of land by way of gift, but subject
to this condition, reference in this Act to the disposal of land shall
be construed as reference to the disposal thereof in any manner,
whether by way of sale, exchange or lease or by the creation of any
easement right or privilege or otherwise.
(3) Subject to the provisions hereinbefore contained, the
[Pradhikaran] [Substituted ‘Authority’ by Haryana Act No. 28 of
2019, dated 2.8.2019.] may sell, lease, or otherwise transfer
whether by auction, allotment or otherwise, any land or building
belonging to it on such terms and conditions as it may, by
regulations, provide.”
28. Consequently, since in terms of the supra endowed statutory
empowerments, the HSVP adopted the instant mode of disposal of the
subject lands, thus through offering them for sale through an e-auction being
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conducted. As such, when respondent No. 5 was the successful bidder in the
said conducted e-auction, which as stated (supra) was so conducted in terms
of the supra bestowed statutory provisions. Resultantly, unless there was
evident colorable exercise of powers at the instance of the officer
supervising the public auction, whereins, respondent No. 5 was declared to
be a highest bidder, therebys the conducting of the public auction, but could
not be challenged. Since there is no averment relating to the said conducted
e-auction, whereins, respondent No. 5 was declared as a successful bidder,
thus suffering from the taint of colorable exercise of powers at the instance
of the officer supervising the public auction, and nor when there is any
further averment, that the said conducted sale by public auction suffering
from any material illegality or irregularity, therebys the rights of the
successful bidder(s) in the public e-auction, thus cannot be snatched.
29. In case, any interference is yet made in the outcome of the
subject auction bid, despite the fact that the respondent No. 5 has tendered a
part of the sale consideration, and, with respondent No. 5 also averring that
it is ready and willing to pay the remaining part of the sale consideration.
Moreover when, therebys the remaining sale consideration rather has
remained untendered, only on account of this Court staying the results of the
e-auction. Resultantly when thereupon an enforceable agreement, thus has
come into existence between co-respondent No. 5 and the official respondent
concerned. Moreover when, the official respondents concerned, has also
evinced its readiness and willingness to comply with the obligation cast
upon it, in pursuance to the contract/agreement, as became entered into
between it and co-respondent No. 5. Therefore, when both the co-respondent
No. 5 and the official respondents are ready and willing to comply with the
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contractual covenants, as become encumbered upon them. Resultantly
when, therebys the official respondents do acquiesce to the enforceability of
the apposite contractual covenants. As such, when concomitantly they also
acquiesce qua therebys the benefits of the principles of promissory estoppel,
and, also the principles of legitimate expectation becoming endowable to co-
respondent No. 5. In sequel, the further consequent effect thereof, is that, all
the benefits of the supra acquiescences employable qua all concerned, thus
ad idem becoming accepted to be endowed vis-a-vis co-respondent No. 5.
30. Be that as it may, when the petitioners are not privy to the
acquiesced contract entered into amongst the official respondents, and,
respondent No. 5, therebys they cannot be permitted to intrude into the said
contract, merely on account of the purportedly vitiated instant conversion.
Moreover, since this Court has hereinabove concluded, that there was no
statutory necessity for adherence being made to the principles of natural
justice, therebys, the petitioners were required to place on record, thus such
material demonstrating, that in the making of the impugned conversion, their
incorporeal rights over the subject sites became severely impaired.
31. However, when for the reasons to be assigned hereinafter, the
said permissible premise, thus for the petitioners successfully challenging
the impugned layout plan, rather is grossly amiss. Initially for the reason
that the houses of the petitioners are situated in proximity to the already
operational hospital nomenclatured as Alchemist Hospital. Since the said
hospital is opposite/adjoining to the respective homes of the present
petitioners. Though, it is averred that owing to heavy congestion of traffic in
the locale concerned, therebys the impugned conversion would overload the
existing infrastructure. However, the said grouse was required to be initially
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raised at the stage when the supra hospital was under construction. However,
since then the petitioners permitted the said hospital to become constructed
at the relevant site, therebys the petitioners acquiesce to the validity of the
construction of the hospital (supra), which exists opposite/adjoining to the
houses of the petitioners. Consequently, they are also estopped to contend,
that owing to the existence of the said hospital in the vicinity of their homes,
therebys there would be an overload of congestion, on the sectoral road
concerned, nor but obviously therebys any palpable prejudice is caused to
the petitioners, on account of the existence of the supra hospital in the
vicinity of their homes.
32. The consequent corollary thereof, is that, when initially the
subject sites became earmarked as Nursery and Primary School sites, and,
when therebys too, there would be also an increase of congestion of traffic in
the locale, which, however, may not occur as the subject sites have been
converted into nursing home sites. The reason for stating so becomes
garnered from the factum, that the over congestion, if any, on the sectoral
road concerned, but appears to become obviated through a proposal for a
multi-level parking being created on the subject sites.
33. In the wake of the above, if the impugned conversion is
quashed, therebys the proposed thereovers nursery and primary sites, but
contrarily would promote an over congestion over the sectoral road
concerned, whereupons some prejudice rather would accrue to the present
petitioners. The reason being that, in the earlier layout plan, there was no
multi-level parking for accommodating the vehicles, thus required to be
plied on the sectoral road concerned, rather for taking the students to the
schools, and, after the school hours, the vehicles being re-deployed for
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taking back the students to their respective homes. Resultantly therebys, the
extantly proposed multi-level parking, appears to be a well contemplated
functional plan for easing the increased flow of traffic on the sectoral road
concerned, wherebys also no prejudice accrues to the present petitioners,
thus on account of the present conversion.
34. Now the aspect that the hospital (supra) is in operational in
proximity to the subject sites, therefore when the subject sites would
augment the health services of the citizens/residents, who are already
receiving treatment at the Alchemist Hospital. Resultantly therebys, when
contra to the school sites being raised in terms of the initial layout plan in
the vicinity of the Alchemist Hospital, there may have been some deleterious
effect on the health of the students, who may have been undertaking
education at such established schools, inasmuch as, on account of some
deleterious emissions or on account of some contagion, if any, which may
stem from the hospital premise. As such, for avoiding any impairment to the
health of the students, who would undertake education in the schools, to be
constructed in the vicinity of Alchemist Hospital, thus therebys the making
of the impugned layout plan obviously appears to be made with an insightful
vision, but for promoting the health of the students. Therefore, the impugned
layout plan is in alignment of Article 21 of the Constitution of India, insofar
as the health concerns of the students, who would undertake education in the
schools to be raised on the earlier school sites, thus become well attended to.
Moreover when therebys, the acquisition of skills by the nurses, who would
undertake nursing education in the nursing home sites, to be constructed as
per the layout plan, has also been well attended to.
35. Now adjudging from the perspective of the instantly proposed
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nursing home sites, thus visibly augmenting the health concerns of the
patients already undertaking treatment at Alchemist Hospital, therebys also
when the apposite additional infrastructure would be created adjunct to the
already operational hospital (supra). Moreover when therebys, the health
concerns of the elderly citizens, as also of the ailing children, thus would
become well augmented, besides when therebys there would be an intensive
training to the nurses also, who would receive education at the nursing home
sites, through theirs engaging with the doctors concerned, who administer
treatment to the patients inmated in the hospital (supra). Consequently when
therebys, there would be an additional augmentation to the health apparatus,
thus beneficial to all the residents of the society, therebys naturally the right
to life, as enunciated in Article 21 of the Constitution of India, but also
would become well furthered. As such, the impugned conversion is in
alignment with Article 21 of the Constitution of India, and, does not require
the same being quashed and set aside. Contrarily, the impugned legislation
is made within the domain of the jurisdiction vested in the competent
authority concerned, to alter the internal layout plans, alteration whereof, as
stated (supra), is beneficial to the health concerns of the society residents
inclusive of the present petitioners, who but would also be the beneficiaries
of the health services to be purveyed at the already existing hospital, and, to
which the proposed augmentation, thus would occur, through the making of
the impugned conversion. Resultantly therebys, rather than prejudice being
caused to the present petitioners, they would be the beneficiaries of the
impugned conversion.
36. Moreover, since the right to practice of business and occupation
is the fundamental right, to which respondent No. 5 is entitled, as respondent
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No. 5 is running a hospital nomenclatured as Alchemist Hospital, at the
relevant site, to which an augmented infrastructure would be added, therebys
the said right to practice business and profession, rather cannot be curtailed
through the instant writ petition, unless accruals of demonstrable palpable
prejudice to the incorporeal rights of the present petitioners rather became
cogently established. Since any purported accrual of prejudice to the
incorporeal rights of the petitioners arising from there being an increased
flow of traffic on the relevant sectoral roads concerned, when for the reasons
(supra), has been declared to be mitigated, through a proposal for creation of
a multi-level parking. Consequently, if yet the fundamental right to practice
business and profession as endowed, vis-a-vis respondent No. 5, thus is
fettered, therebys gross injustice would be wreaked upon co-respondent
No. 5.
37. Moreover, since the sale of the subject sites through an e-
auction was duly notified, thereupon when at the stage of publication of the
e-auction notice, the present petitioners had the right to restrain the
respondents concerned, from conducting the public e-auction, but theirs
having waived or abandoned the said challenge, therebys the petitioners
cannot, at this stage, ask for the quashing of the public e-auction, besides
they cannot ask for the concomitant relief, that there has been any arbitrary
alteration in the layout plan. If the said is done, thereupon the apposite
contract, as entered into, through the issuance of a letter of allotment to the
successful bidder(s) concerned, rather would become breached, besides
therebys, both the principles of promissory estoppel and the principles of
legitimate expectation, as become favourably attracted vis-a-vis respondent
No. 5, thus would also become violated, especially when the said principles
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have been accepted by the official respondents concerned, to be endowable
to co-respondent No. 5.
38. Now assuming that irrespective of no allegation being made by
the present petitioners regarding respondent No. 5, being the successful
bidder in the e-auction, on the ground, that the auction proceedings became
tainted with any material illegality and irregularity. Moreover, irrespective
of the fact, that despite the publication of the e-auction notice, the petitioners
rather not making a motion before this Court, thus for restraining the
respondents from conducting e-auction, wherebys the petitioners may
become estopped to make a challenge, thus both to the conversion, and, also
to the e-auction, yet paramountly the petitioners, were required to prove, that
the mandate embodied in Section 14 of the HSVP Act, and, that all the
mandates embodied in Sections 17 and 19 of the Panchkula Metropolitan
Development Authority Act, thus requiring theirs becoming effectively
applied vis-a-vis the subject sites, did warrant theirs being complied with,
especially before the conversion being made. In the wake of the said
successful challenges being made, therebys both the public e-auction of the
subject sites, besides the prior thereto conversion would become amenable to
become declared to be arbitrary and capricious.
39. In the said regard, it is necessary to bear in mind the provisions
of Section 79 of the Act of HSVP Act, provisions whereof become extracted
hereinafter.
“79. Amendment of Plan.- (1) The Local Development Authority
may make any amendment in the master plan or the sector
development plan as it thinks fit, which may in its opinion do not
effect important alterations in the character of the plan and which
do not relate to the extent of land uses or the standards of42 of 46
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population density.
(2) The State Government may make amendments in the master plan
or the sector development plan whether such amendments are of the
nature specified in sub-section (1) or otherwise.
(3) Before making any amendments in the plan, the Local
Development Authority, or as the case maybe, the State Government
shall publish a notice in at least one newspaper having circulation
in the local development area inviting objections and suggestions
from any person with respect to the proposed amendment before
such date as may be specified in the notice and shall consider all
objections and suggestions that may be received by the Local
Development Authority or the State Government.
(4) Every amendment made under this section shall be published in
such manner as the Local Development Authority or the State
Government, as the case may be, may specify and the amendments
shall come into operation either on the date of the first publication
or on such other date as the Local Development Authority or the
State Government as the case may be, may fix.
(5) When the Local Development Authority makes any amendments
in the plan under sub-section (1) it shall report to the State
Government the full particulars of such amendments within thirty
days of the date on which such amendments come into operation.
(6) If any question arises whether the amendments proposed to be
made by the Local Development Authority are amendments which
affect important alterations in the character of the plan or whether
they relate to the extent of land uses or the standards of population
density, it shall be referred to the State Government whose decisions
thereon shall be final.
(7) Any reference to the master plan or the sector development plan
shall be construed as a reference to the master plan or the sector
development plan as amended under this section.”
40. Though, Section 79 of the Act of 1963 refers to the procedure
for making amendments to the initially drawn layout plan, by the local
authority, which includes issuing notices and inviting objections. However,
Section 61(b) of the Act of 1963, provisions whereof become extracted
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hereinafter, defines the Local Development Area, as the area declared as
such, under Section 62(1) of the Act of 1963, provisions whereof also
become extracted hereinafter.
“61. Definitions.- In this Chapter, unless the context otherwise
requires,-
(a) x x x x
(b) “local development area” means the area declared as such
under sub-section (1) of section 62.”
x x x x
62. Declaration of Local Development area.- (1) If in the opinion of
the State Government any area within the State requires integrated
planned development, it may, by notification, declare such area to
be local development area and such area shall include the area
within a town or local authority including a municipal committee or
Faridabad Complex Administration, the controlled area declared
under the Punjab Scheduled Roads and Controlled Areas
Restriction of Unregulated Development Act, 1963 (Act 41 of 1963)
and the Faridabad Complex Administration Act, 1971 (Act 42 of
1971), or any other area which in the opinion of the State
Government is likely to be developed.”
41. A reading of the above provisions reveals, that there is no
declaration as such, thus declaring Sector-21, Panchkula as the Local
Development Area, therefore, Section 79 of the Act of 1963, rather is not
applicable to the subject site, nor therebys any of the statutory provisions
relating to the objections being ensured to be received and decided, rather
warranted any reverence thereto becoming meted, nor the omission to make
any reverence thereto vitiates the impugned layout plan.
42. Furthermore, reiteratedly the petitioners have failed to prove on
record qua any prejudice being caused to them. Moreover, reiteratedly
insofar as the grievance raised by the petitioner with regard to the problem
of parking is concerned, it is well contended in the reply furnished by
respondent No. 5, that in order to curb the parking problem in the vicinity,
the respondent-HSVP has planned an area measuring 2468 mtrs., for
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multilevel parking, besides an additional space of 9 meter wide pavement,
thus for common parking, thus has also been planned. Consequently, since
the said grievance of the petitioners has already been adequately redressed
by the HSVP, therefore, the said purported prejudice has no bearing at all
upon the impugned layout plan.
43. Moreover reiteratedly, the nurses in the nursing homes to be
established at the nursing home sites would receive training at the adjoining
hospital, whereupon when their nursing skills would become enhanced.
Moreover also, since the nursing home site is a facility for the residential
care of elderly people, senior citizens, or disabled people, and, also when the
said nursing home sites are to be also used by those patients, who do not
require being admitted in a hospital, but require constant care and
supervision. Therefore, since the right to health and medical care is a
fundamental right, which includes the right to access the nursing homes,
therebys also the said right, as endowed under Article 21 of the Constitution
of India, vis-a-vis all supra, but naturally has been taken adequate care in the
drawings of the impugned conversion.
Final order
44. In aftermath, this Court finds no merit in the instant writ
petition, and, with the above observations, the same is hereby dismissed.
45. The letter of allotment, if not issued, be forthwith issued, and,
also the deed of conveyance, if not executed, be ensured to be forthwith
lawfully executed between all concerned. Moreover, all the requisite entries,
if required, be made in the relevant registers/records maintained by the
HSVP.
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46. The miscellaneous application(s), if any, is/are also disposed of.
(SURESHWAR THAKUR)
JUDGE
(VIKAS SURI)
JUDGE
March 12th, 2025
Gurpreet
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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