Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S). 6471 OF 2021
(Arising out of SLP (Civil) No(s).30780 OF 2015)
ANANT RAJ LTD.
(FORMERLY M/S. ANANT RAJ
INDUSTRIES LTD.) ... APPELLANT(S)
VERSUS
STATE OF HARYANA & ORS. … RESPONDENT(S)
WITH
CIVIL APPEAL NO(S). 6472 OF 2021
(Arising out of SLP(Civil) No(s).32798 OF 2015)
CIVIL APPEAL NO(S). 6473 OF 2021
(Arising out of SLP(Civil) No(s). 11082 OF 2016)
J U D G M E N T
Rastogi, J.
1. Leave granted.
2. The question that arises for consideration in this batch of
Signature Not Verified
Digitally signed by
DEEPAK SINGH
Date: 2021.10.27
18:24:54 IST
Reason:
appeals is whether the methodology adopted by the Respondent
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State of Haryana for grant of licence of its own land on the principle
of First Come First Serve basis for development of a group housing
colony under the Final Development Plan of GurgaonManesar
Urban Complex for 2025 can be said to be just, proper and legally
tenable in law.
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3. The High Court under the impugned judgment dated 26
August, 2015 taking note of the Scheme of Haryana Development
and Regulation of Urban Areas Act, 1975 (hereinafter referred to as
the “1975 Act”) read with Haryana Development and Regulation of
Urban Areas Rules, 1976 (hereinafter referred to as the “1976
Rules”) held that the policy adopted by the State authorities for the
grant of licence on the principle of First Come First Serve basis
cannot be held to be fair, reasonable and transparent method and it
led to an unholy race amongst the applicants in achieving their goal
of obtaining grant of licence held it against public policy and in
sequel thereof cancelled the grant of licence to the impleaded
respondents 4 to 7 (Appellant herein) with a direction to the State
Government to consider the grant of licence after framing a
transparent and fair policy to grant privilege of licence.
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4. The appellants before this Court are the impleaded
respondents whose grant of licence has been cancelled by the High
Court under the impugned judgment. At the same time, since the
original petitioners were also deprived from grant of licence, they
too are in appeal before this Court assailing the selfsame
impugned judgment in the connected appeal.
5. The impleaded Respondent Nos.7 to 9 are the original
petitioners at whose instance writ petition came to be filed before
the High Court of Punjab and Haryana at Chandigarh under Article
226/227 of the Constitution against the rejection of their claim for
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grant of licence by an order dated 20 September, 2013 and while
questioning the rejection of their claim for grant of licence, it was
also prayed that enquiry be held into the functioning of the
Department of Town and Country Planning, Haryana and the tailor
made mechanism which was adopted for grant of licence to the
privileged builders/developers at the cost of the owners of the land
and appropriate action may be taken against the malfunctioning of
the Department and further prayed for grant of licence in High
Potential Zone on their land situated in Sector 63A, Gurgaon for the
project of group housing in terms of Section 3 of the 1975 Act.
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6. The facts in brief culled out and relevant for the purpose are
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that earlier the Final Development Plan was published on 5
February, 2007 under Section 5 of the Punjab Scheduled Roads
and Controlled Areas Restriction of Unregulated Development Act,
1963 (hereinafter referred to as the “1963 Act”. That the
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Respondent no.2 issued a public notice dated 1 October, 2010
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published on 4 October, 2010 stating, inter alia, that the
prospective Draft Development Plan (DDP) of GurgaonManesar
Urban Complex (GNUC) 2025 is published for inviting objections
and suggestions. At the same time, interested persons may apply
on the basis of Draft Development Plan 2025 after its publication in
the Official Gazette with a further rider that the applicant may
apply at his/her own risk knowing the aforestated position and
any application received on the basis of Draft Development Plan for
2025 before its publication in the Official Gazette will be rejected.
7. It may be relevant to note that neither in the public notice
inviting application for grant of licence nor under the Scheme of the
1975 Act and the 1976 Rules thereunder, it is nowhere mentioned
that the licence shall be granted on the basis of the alleged policy
adopted by the Government of First Come First Serve basis, but it
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appears that all the stakeholders and interested parties are having
access and a knowledge about the principle of First Come First
Serve basis, start rushing to the office of the Respondent
authorities for submitting their applications.
8. Respondent nos.7 to 9 (original writ petitioners) submitted
application under Section 3 of the 1975 Act for grant of licence to
set up a group housing colony on its land admeasuring 13.618
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acres in Sector 60, Gurgaon on 10 September, 2010, much before
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the public notice dated 1 October, 2010 being published in the
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Official Gazette on 4 October, 2010, and in furtherance an
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application was submitted on 6 October, 2010 to the second
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respondent for treating their original application dated 10
September, 2010 in reference to Sector 63A.
9. The present appellants also submitted their application
seeking licence under Section 3 of the 1975 Act for setting up a
group housing colony on its selfowned land in Sector 63A,
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Gurgaon on 4 October, 2010. It appears that at the time of
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publication of public notice dated 4 October, 2010, the subject
land of the Respondent nos.7 to 9 (writ petitioners) became part of
Sector 63A, which obviously came to be rejected by the authority by
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an order dated 9 November, 2010 on the premise that application
was submitted for development of land in Sector 60 and was
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submitted prior to the publication of DDP dated 4 October, 2010
with liberty to apply for licence in Sector 63A.
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10. The order of rejection dated 9 November, 2010 came to be
challenged by Respondent nos.7 to 9 in Writ Petition (Civil)
Nos.18838 of 2010 and 21236 of 2010 which came to be disposed
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of by the High Court by order dated 9 August, 2011 with a
direction to decide the application of Respondent nos.7 to 9 afresh
irrespective of sector in which their land fell in accordance with law.
To their misfortune, in compliance to the order of the High Court,
their application again came to be rejected by a reasoned order
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passed by the second respondent dated 16 September, 2011.
11. Prior thereto, Respondent nos.1 and 2 notified/published the
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Final Development Plan 2025 on 24 May. 2011 and in furtherance
thereof, Respondent no.1 came out with the clarificatory
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instructions dated 5 July, 2012 indicating that henceforth areas
falling in high potential zone (GNUC) to which we are concerned,
the date of Final Development Plan shall be the effective date for
acceptance and consideration of licence applications.
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12. The public notice dated 1 October, 2010 which came to be
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published on 4 October, 2010 and the instructions issued by the
Respondent no.2 in exercise of its powers under Section 9A of the
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1975 Act dated 5 July, 2012 laying down the policy parameters for
allotment of licence on its own land are reproduced hereunder:
“PUBLIC NOTICE
It is informed to the General Public that amendment in ‘Final
Development Plan’ Gurgaon Manesar Urban Complex published vide
Haryana Government Gazette (Extra Ordinary) Notification
No.CCP9NCR/FDP(G) 2007/359, dated 05.02.2007 is being carried
out for which the state level Committee meeting was held 27.09.2010.
It has been observed that applications are being received in the
Department for granting Change of Land Use permission and licence
applications on the basis of such proposed amendment. The draft
Development Plan of said GurgaonManesar Urban Complex for
perspective year 2025 will be published as per Section 5(4) of the
Punjab Schedule Roads and Controlled Areas Restriction of
Unregulated Development Act, 1963 for inviting the objections and
suggestions. Though a person can apply on the basis of the Draft
Development Plan2025 after publication in the Official Gazette, it
does not confer any right in favour of the applicant with respect of
grant of change of Land Use Permission and Licence which will not
granted till the publications of Final Development Plan Gurgaon
Manesar Urban Complex2025 under Section 5(7) of the ibid act in
the Official Gazette. It is informed that the General Public that the
applicant may apply at his/her own risk fully knowing the above
stated position. Any application received on the basis of proposed
proposals in Draft Development Plan, GurgaonManesar Urban
Complex2025 before its publication in Official Gazette will be
rejected.
Sd/
(T.C. Gupta, IAS)
Director, Town & Country Planning
Haryana Chandigarh
Email : tcphry@gmail.com
Dated : 01.10.2010”
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“Memo No.PF25/7/18/20052TCP; Date : 5 of July 2012
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SUBJECT: INSTRUCTIONS REGARDING RECEIPT & VALIDITY OF
APPLICATIONS FOR GRANT OF LICENSE.
…………….
Accordingly, in accordance with the powers conferred under Section
9A of the Haryana Development and Regulation of Urban Area Act,
1975, the Governor of Haryana is pleased to pronounce the following
policy parameters in this regard:
(i) In the towns/urban areas falling in Hyper & High Potential
Zone, the date of publication of Final Development Plan shall be
effective date for acceptance and consideration of licence
applications.
(ii) In towns/urban areas falling in Medium & Low Potential Zones,
the date of publication of Draft Development Plan shall be the
effective date for acceptance and consideration of licence applications
provided
(a) No further change is envisaged in any subsequent
Development Plan of that area for which ‘inprinciple’ approval of the
Government has been obtained;
(b) There is no recommendation of DPC/SLC to effect
amendments in the Development Plan proposals already in vogue of
the applied area.
(iii) In case of any Development Plan falling in more than one
Potential Zone, the policy prescribed for the higher category zone
shall be considered to be applicable.
(iv) On account of availability of information regarding Development
Plan proposals in the public domain, demand drafts of scrutiny fee
and license fee of any date prior to publication of Draft/Final
Development Plan, as the case may be, shall also be accepted
provided the same is valid for at least one month from the date of
submission of the application. However, the effective date for
acceptance and consideration of licence applications shall continue to
remain as prescribed under Sr No.(i) and (ii) above.
(v) Any application submitted prior to the prescribed effective date
shall be considered as premature and shall be returned for
resubmission after publication of the respective Development Plan.
These instructions shall come into force with immediate effect.”
13. M/s Anant Raj Ltd. (Appellant in Civil Appeal arising out of
SLP(C) No.30780 of 2015) was granted licence No.54 of 2013 dated
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6 July, 2013 for setting up of a group housing colony on its land
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admeasuring 26.065 acres in Sector 63A, Gurgaon and M/s
Mahamaya Exports Pvt. Ltd. (Appellant in Civil Appeal arising out of
SLP(C) No.32798 of 2015) was granted licence bearing no.77 of
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2014 dated 6 August, 2014 for setting up a group housing colony
on an area of 14.025 acres in Sector 63A, Gurgaon. At the same
time, so far as Respondent nos.7 to 9 are concerned, their
application for grant of licence being earlier rejected by the second
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respondent by order dated 16 September, 2011, the appeal
preferred at their instance came to be dismissed by an order dated
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20 September, 2013.
14. The impugned decision rejecting application for grant of licence
of Respondent nos.7 to 9 by the second respondent became the
subject matter of challenge by filing a writ petition before the High
Court of Punjab and Haryana at Chandigarh under Article 226 and
227 of the Constitution. It is not disputed that Respondent nos.7 to
9 did not challenge the grant of liecence to the appellants by an
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order dated 6 July, 2013 and 6 August, 2014 in unequivocal
terms but the fact is that they were impleaded as party respondent
in the writ petition and a prayer was made that the procedure
which was being adopted by the State authorities for grant of
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licence on the principle of First Come First Serve basis is
unsustainable in law, not in public interest and such arbitrary
action of the respondent authorities requires to be interfered with
by the Court.
15. The present Appellants filed their counter affidavit before the
High Court and contested the matter knowing fully well the
consequence/outcome of the pending litigation and during the
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course of proceedings by an order dated 13 August, 2015, two
questions were framed by the High Court for its consideration as
under:
“1. How the licence for development of a colony can be granted on
publication of draft development plans published in terms of Punjab
Scheduled Roads and Controlled Areas Restriction of Unregulated
Development Act, 1963?
2. As to how the policy for grant of licence on first come First Serve
basis is fair and reasonable, in view of the Hon’ble Supreme Court
judgment titled as Centre for Public Interest Litigation and others v.
Union of India and others, 2012 (3) SCC page 1?”
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16. In pursuance to the order of the High Court dated 13 August,
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2015, additional affidavit dated 19 August, 2015 was filed by the
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second respondent relying upon the practice followed after 5 July,
2012, of which reference has been made earlier. It was, inter alia,
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stated that as per the practice followed after 5 July, 2012,
applications have been considered for grant of licence in a high and
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hyper potential zones only on the basis of the Final Development
Plan published under Section 5 of the 1963 Act and there was no
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prescribed policy before 5 July, 2012 pertaining to considering
licence applications on the basis of Draft/Final Development Plan,
though neither the 1963 Act or 1975 Act made any restrictions for
grant of licence based on Draft Development Plan.
17. It was further stated that in the town or urban areas falling in
high and hyper potential zones, the date of publication of the Final
Development Plan shall be the effective date for acceptance and
consideration of licence applications and so far as the second
question raised by the High Court is concerned, it was nowhere
indicated how the policy of grant of licence on First Come First
Serve basis has been introduced. However, a justification was
tendered that it is fair and reasonable and it will be appropriate to
quote the extract of justification tendered by the Respondent in
reference to its policy for grant of licence on First Come First Serve
basis as under:
“5. That regarding second observation as to how the policy for grant
of licence on first come first serve basis is fair and reasonable in view
of the Hon’ble Supreme Court Judgment titled as Centre for Public
Interest Litigation and Others Vs. Union of India and Others. It is
clarified that the said policy of first come first serve has been adopted
as a ‘Principle of Natural Justice’. It is further added that since no
natural resource in the ownership of Government is being offered
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through a licence under Act No.8 of 1975, the Hon’ble Supreme Court
judgment in Centre for Public Interest Litigation and others Vs Union
of India and others does not appear to be applicable in such licence
cases. The applications for grant of licence are accordingly considered
on merits of the case and as per provisions laid down in the Act of
1975 and Rules made thereunder. However, the Government is seized
of the matter and devising an alternate transparent system for the
purpose is under active consideration.
In view of the submissions made in forgoing paras, it is respectfully
prayed that the above said petition may kindly be dismissed being
without any merit.”
18. The High Court after examining the Scheme of the 1975 Act
and 1976 Rules and taking note of the rival submissions made by
the parties under its judgment impugned held that grant of licence
on First Come First Serve basis is not a fair, reasonable and
transparent method and in consequence thereof, cancelled the
liecence granted to the Appellants, who were Respondent nos.4 to 7
before the High Court and directed the State Government to
consider the grant of licences after framing a transparent and fair
policy to grant privilege of licences thereafter in accordance with
law.
19. It is informed to this Court that in supersession of earlier policy
of 2006, the State Government has come out with its selfcontained
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policy dated 10 November, 2017 for grant of licence and change of
land use, permissions under Section 9 of the 1975 Act and Rules
thereof and under Section 11 of the 1963 Act to consider all
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pending and future applications in terms of its policy of 2017 in a
fair and transparent manner, taking note of the judgment
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impugned of the High Court dated 26 August, 2015.
20. Mr. Ranjit Kumar, learned senior counsel for the Appellants,
submits that their application for grant of licence was duly
considered by the authority and the same being in order, fulfilling
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the guidelines and instructions dated 5 July, 2012 issued by the
State Government in terms of its policy of 2006, licence was granted
to the appellant and it was not the subject matter of challenge
before the High Court in the writ petition preferred at the instance
of Respondent nos.7 to 9. In the absence thereof, the finding
recorded by the High Court in setting aside their grant of licence is
not sustainable.
21. Learned senior counsel further submits that the policy for
grant of licence on First Come First Serve basis was a long standing
practice followed by the respondent authorities and the licence was
to be granted to the incumbent of its own land in terms of the
parameters which have been laid down under the policy and
submits that the judgment on which the High Court has placed
reliance to nonsuit the claim of the Appellants in Centre for
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Public Litigation & Ors. v. Union of India & Ors. (2012) 3 SCC 1
has no application.
22. Learned senior counsel further submits that there was no
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prescribed policy before 5 July, 2012 regarding consideration of
licence applications on the basis of Draft/Final Plan. Though there
is no restriction in the 1975 Act for grant of licence based on Draft
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Plan, and submits that although the policyinstructions dated 5
July, 2012 sought to bring a change, but as per the practice of the
State authorities, Government was accepting applications on the
basis of Draft Plans throughout and in the instant case the
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Appellants and other contenders submitted their applications on 4
October, 2010 when the Draft Development Plan was published,
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however, the Final Development Plan was published on 24 May,
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2011, still the licences were granted to the Appellants on 6 July,
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2013/6 August, 2014, much after publication of the Final
Development Plan and submits that there was no error in the
process which was adopted by the Respondents and their
applications being in conformity with the policy which was widely
circulated by the State authorities, cancellation of their grant of
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licence by the High Court under the impugned judgment in the
facts and circumstances is unsustainable in law.
23. Learned senior counsel further submits that the judgment in
Centre for Public Litigation (supra) of this Court relied upon by
the High Court has no application in the facts of the instant case
for the reason that the case relied upon was related to a case where
spectrum was recognised as a natural resource owned by the State
and it was held by this Court that distribution of natural resource
has to be in a fair and transparent manner and it is possible that
policy of First Come First Serve basis may likely to be misused in
case of alienation of public property. But in the instance case, it is
a land of the owners/Appellants which they seek to develop. The
grant of licence is not akin to distribution of natural resources of
the State and further submitsthat in the given circumstances the
interference which has been made by the High Court in cancellation
of their grant of licence deserves to be set aside.
24. Per contra, counsel for M/s Mahamaya Exports Pvt. Ltd.
supports the submissions made by Mr. Ranjit Kumar, Senior
Advocate.
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25. Mr. Anil Grover, learned Senior Additional Advocate General
appearing for the State submits that the process was initiated for
grant of licence on the principle of First Come First Serve basis.
Learned Sr. A.A.G. further submits that after the public notice
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dated 1 October, 2010 came to be published on 4 October, 2010,
process was initiated for grant of licence on the principle of First
Come First Serve basis and this is the practice which was being
followed for quite a long time and since the application of
Respondent nos.7 to 9 (original writ petitioners) was rejected for
valid reasons and the Division Bench has not interfered in the order
of rejection passed by the authority and further submits that after
passing of the judgment impugned in the instant proceedings, the
Government in supersession of its earlier policy of 2006 has
introduced the selfcontained policy of 2017 and he has
instructions to inform that all pending applications or fresh
applications are to be considered in terms of the policy of 2017.
26. Learned counsel further submits that so far as allotment of
licence in Sector 63A Gurgaon is concerned, which is the subject
matter of challenge in the instant proceedings, although the policy
of 2017 has now come into force, but in the peculiar facts and
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circumstances, the allotment was made within the cap of 20% in
Sector 63A for development of group housing society, as indicated
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in the public notice dated 4 October, 2010, and if this Court
considers appropriate, the application of Respondent nos.7 to 9 can
be considered under the same policy in vogue to give quietus to the
litigation.
27. Learned counsel appearing for the Respondent nos.7 to 9
submits that after the impugned judgment passed by the High
Court, the State Government has accepted the verdict of the Court
and has come out with its policy of 2017, which has been duly
notified and all pending/fresh applications will be considered for
grant of licence in terms of the existing policy of 2017 and further
submits that at least his application for grant of licence may be
considered as a special case under the old policy of 2006 in the
interest of justice.
28. Learned counsel for Respondent nos.7 to 9 further submits that
their application for grant of licence has been arbitrarily rejected by
the State authorities and the factual matrix has not been
appreciated by the High Court and their application at least may be
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revisited in terms of the policy in vogue for the grant of licence
earlier rejected by the State authority.
29. We have heard the learned counsel for the parties and with
their assistance have perused the materials available on record.
30. The undisputed facts which have emerged from the record are
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that neither in the public notice dated 1 October, 2010 which
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came to be published on 4 October, 2010, nor in the Final
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Development Plan dated 24 May, 2011, nor in policy instructions
which came to be circulated by the Respondents at a later stage on
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5 July, 2012, regarding receipt and validity of the applications for
grant of licence, of which a detailed reference has been made,
nowhere prescribes that the method of allotment of licence shall be
made on First Come First Serve basis and from where this practice
had been borrowed/adopted by the Respondent/State authorities
is alien to the Scheme of the 1975 Act or the 1976 Rules framed
thereunder, nor any material in support thereof has been placed
on record.
31. Even at the time of conclusion of submissions, we posed this
question to the counsel for the State of Haryana as to from where
this principle of First Come First Serve basis for allotment of
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licence has been borrowed and what is the basis/foundation to
hold it as a practice in inviting applications from the prospective
applicants on the principle of First Come First Serve basis, but
nothing has been placed on record despite opportunity being
afforded to substantiate and to support it further, we find that the
policy of the State Government for grant of licence and change of
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land use cases dated 19 December, 2006 which was made
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effective retrospectively from 7 February, 2005, is also completely
silent and there is no material on record that after the policy of
2006 came to be introduced, at any given point of time in the
interregnum the process was ever initiated by the Respondent
nos.1 and 2 for grant of licence and change of land use before the
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publication of public notice dated 4 October, 2010.
32. This Court can validly proceed on the basis that some
impression has been thrown to examine the applications
submitted by the interested parties/applicants pursuant to a
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public notice dated 4 October, 2010 for grant of licence and
change of land use on the principle of First Come First Serve basis,
but it is neither codified nor on record from where this practice
has been developed and adopted by the Respondents in examining
the applications for grant of licence. The entire Scheme placed on
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record is completely silent on the subject issue which came to be
examined by the High Court under the impugned judgment.
33. When we call the term “established practice”, it always
refers to a regular, consistent, predictable and certain conduct,
process or activity of the decisionmaking authority and being the
State functionary, its character is supposed to be based on the
requirement of higher degree of fairness in administrative action to
be tested on the anvil of Article 14 of the Constitution.
34. The very foundation on which the process was initiated,
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inviting applications pursuant to the public notice dated 4
October, 2010, on the principle of First Come First Serve basis is
completely silent/missing from records and how that becomes an
established practice in entertaining applications for grant of
allotment of licence under the policy of the State Government
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dated 19 December, 2006, pursuant to which the public notice
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came to be published on 4 October, 2010 with a clarification
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being made of the policy of the Government dated 5 July, 2012 is
alien to the records and it was never made known to the public as
to the mechanism the Government intended to adopt for grant of
licence to the prospective applicants.
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35. Although this factor cannot be ruled out that those who are
interested parties, they were aware of this socalled alleged
practice of First Come First Serve adopted in the office of the State
Respondent and that was the reason for which even before the
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public notice dated 1 October, 2010 came to be published on 4
October, 2010, people start running for submitting their
applications as if they are participating in the mad race, without
being known to the people at large about the policy according to
which the applications are invited for grant of licence to the
prospective applicants which is a sine qua non for good
governance.
36. That apart, there is a fundamental flaw in the policy of the
State of First Come First Serve basis as it involves an element of
pure chance or accident and it indeed has inherent inbuilt
implications and this factor cannot be ruled out as we have gone
through the record, any person who has an access to the power
corridors will be made available with an information from the
Government records and before there could be a public notice
accessible to the people at large, the interested person may submit
his application, as happened in the instant case, and become
entitled to stand first included in queue to have a better claim, at
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the same time it is the solemn duty of the State to ensure that a
nondiscriminatory method is adopted, whether it is for
distribution or allotment of licence on his own land, or alienation
of property and it is imperative and of paramount consideration
that every action of the State should always be in public interest.
37. In the matter of grant of licence even on its own land to set
up a group housing society, the policy of allotment must be fair
and transparent and as there is a cap of 20% for group housing
society in the sector area and if the demand exceeds more than
available density of 20% area reserved for group housing in the
sector alike Sector 63A, Gurgaon under the Final Development
Plans as published in the instant case, the method of selection has
to be such so that all the eligible applicants get a fair opportunity
of competition and it is the bounden duty of the State and its
instrumentalities of their action to be conformed with Article 14 of
the Constitution of which nonarbitrariness is a significant facet.
A public authority possesses powers only to use them for public
good. This imposes a solemn duty on the State to act impartially
and to adopt a procedure of allotment of licence which is fair play
in action.
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38. We find no difficulty in holding that in the first instance there
is no such consistent practice as alleged of First Come First Serve
basis for allotment of licence available under the entire Scheme
placed on record and secondly, from where this principle has been
borrowed is alien to the statute and also the policy pursuant to
which the process was initiated for allotment of licences to the
prospective applicants.
39. Curiously, we find that before this Court counter affidavits
came to be filed by the Respondent State though its Chief Town
Planner, Department of Town and Country Planning, Haryana,
Chandigarh coming out with the justification and the procedure
which has been followed based on the principle of First Come First
Serve basis while granting licence to the Appellants stating inter
alia that if there are more than one application of the same day
and time, what will be the mechanism to be followed has also been
referred to, but from where it has been originated and about its
factual foundation has not been placed on record, despite the
directions of this Court at the time of conclusion of submissions
made. The extract of the explanation tendered is reproduced
hereunder :
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“A. That in reply to sub para (A), it is submitted that though land
applied for licence for setting up of a Group Housing Colony by the
present petitioner and respondent no.1 to 3 was different, but as per
the Final Development Plan of GMUC2025 AD published vide
notification dated 24.05.2011, the same was falling within the same
sector i.e. Sector 63A, Gurugram. The licence was granted to the
present petitioner on the basis of ‘first come First Serve’ basis.
However, licence application of respondent no.1 to 3 was rejected by
respondent no.5 vide order dated 16.09.2011 mainly on the ground
that some land applied for licence was not partitioned and that the
land has not been mutated in favour of the applicant. Another ground
for rejection was that the same was falling beyond the limits of the
Development Plan of Gurugram Manesar Urban Complex2021 AD.
B. That in reply to sub para (B), it is submitted that the interim order
dated 21.12.2013 passed by the Hon’ble High Court was only to the
extent that the area measuring 13.61875 acres for which respondent
no.1 to 3 had applied for grant of licence for setting up of a Group
Housing Colony will be reserved till the final conclusion of the legal
proceedings. However, the licence of private respondents in CWP
No.21942 of 2013 was cancelled by the Hon’ble High Court vide
impugned order by observing that the doctrine of ‘first come First
Serve’ basis was not fair and transparent.
H. That in reply to the averments made in sub para (H), it is
submitted that in the policy dated 19.12.2006, it was specifically
mentioned that the area under Group Housing should not exceed
20% of the sector area. Though, it is not specifically stated in the said
policy that the applications would be considered on ‘first come First
Serve’, but the applications were considered on the basis of policy of
‘first come First Serve’ basis. The seniority of the applicants for grant
of licence for Group Housing Colony/Commercial Colony etc. (where
there is cap for grant of licence) was fixed from the date of receipt of
application. If the date of receipt was the same, then from the receipt
number of the same date. Hence, it cannot be said that the time and
date when the application for grant of licence was filed was not
relevant. However, if the applicant whose application for grant of
licence was received earlier, but was not eligible for grant of licence,
the application received after the date of the receipt of the earlier
application was considered for grant of licence. Hence, the averments
made by the petitioner in this sub para cannot be accepted as such.”
40. In our considered view, the principle of First Come First Serve
basis which has been adopted by the State Respondents in the
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facts of the instant case is neither held to be rational nor in public
interest and is in violation of Article 14 of the Constitution of India.
41. The submission made by counsel for the Appellant that their
grant of licence was not the subject matter of challenge in the writ
petition before the High Court is of no substance for the reason
that firstly they were impleaded as party respondents and the
subject issue under consideration was much known to them as to
whether the socalled alleged practice of First Come First Serve
basis which has been adopted by the State authorities for grant of
licence, how far it was rational and is in conformity with the
Scheme of the statute and secondly, the High Court after framing
th
substantive question under its order dated 13 August, 2015
afforded opportunity of hearing to the Appellants who have filed
their counteraffidavits and thereafter has arrived to a conclusion
that the principle of First Come First Serve basis adopted in grant
of licences is not a valid consideration, the only consequence
available was to cancel such licence which have been granted
based on the socalled alleged practice which is unsustainable in
law and in our considered view no error was committed in passing
the order of cancellation of grant of licence to the Appellants under
the judgment impugned.
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42. A further submission made by counsel for the Appellant that
it is a consistent practice which was followed throughout and
almost 248 licences had been granted under the policy in vogue at
that time, in our considered view does not hold good for the reason
that those who are not party to the proceedings before the High
Court obviously no adverse action could have been taken against
them pursuant to the view expressed by the High Court in the
impugned judgment, at the same time the principle may apply to
the present Appellants who are indeed parties to the proceedings
and have contested their claim and have been nonsuited after a
fair opportunity of hearing being afforded, may not be in a position
to defend their grant of licence on the principle of First Come First
Serve basis which has been held to be unfair and in violation of
Article 14 of the Constitution.
43. With regard to the further submission made by the counsel
for Respondent nos.7 to 9 about rejection of their application for
grant of licence, suffice it to say that once this Court has upheld
the view expressed by the High Court regarding the procedure of
allotment of licence based on the principle of First Come First
Serve basis, as held against the Public Policy, at least Respondent
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nos.7 to 9 would not be in a position to plead for consideration of
their applications for grant of licence under the impugned policy.
44. We make it clear that once the policy of 2017 has been
introduced by the State Respondents, it is open to consider all
pending applications and the application of the present Appellants
for grant of licence under the policy of 2017 in accordance with
law.
45. Consequently, we find no substance in the appeals which are
accordingly dismissed.
46. All pending applications, if any, stand disposed of.
…………………………J.
(Ajay Rastogi)
…………………………J.
(Abhay S. Oka)
New Delhi
October 27, 2021.
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