Anant Raj Ltd. ( Formerly Anant Raj … vs The State Of Haryana on 27 October, 2021


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Supreme Court of India

Anant Raj Ltd. ( Formerly Anant Raj … vs The State Of Haryana on 27 October, 2021

Author: Ajay Rastogi

Bench: Ajay Rastogi, Abhay S. Oka

                                                                         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)


                                              JUDGMENT

Rastogi, J.

1. Leave granted.

2.
Signature Not Verified
The question that arises for consideration in this batch of
Digitally signed by
DEEPAK SINGH
18:24:54 IST
Reason:

appeals is whether the methodology adopted by the Respondent
Date: 2021.10.27

1
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.

3. The High Court under the impugned judgment dated 26 th

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.

2

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

grant of licence by an order dated 20 th 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.

3

6. The facts in brief culled out and relevant for the purpose are

that earlier the Final Development Plan was published on 5 th

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

Respondent no.2 issued a public notice dated 1 st October, 2010

published on 4th 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

4
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

acres in Sector 60, Gurgaon on 10th September, 2010, much before

the public notice dated 1st October, 2010 being published in the

Official Gazette on 4th October, 2010, and in furtherance an

application was submitted on 6th October, 2010 to the second

respondent for treating their original application dated 10 th

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,

Gurgaon on 4th October, 2010. It appears that at the time of

publication of public notice dated 4th 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

5
an order dated 9th November, 2010 on the premise that application

was submitted for development of land in Sector 60 and was

submitted prior to the publication of DDP dated 4th October, 2010

with liberty to apply for licence in Sector 63A.

10. The order of rejection dated 9 th 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

of by the High Court by order dated 9th 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

passed by the second respondent dated 16 th September, 2011.

11. Prior thereto, Respondent nos.1 and 2 notified/published the

Final Development Plan 2025 on 24th May. 2011 and in furtherance

thereof, Respondent no.1 came out with the clarificatory

instructions dated 5th 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.

6

12. The public notice dated 1st October, 2010 which came to be

published on 4th October, 2010 and the instructions issued by the

Respondent no.2 in exercise of its powers under Section 9A of the

1975 Act dated 5th 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 : [email protected]
Dated : 01.10.2010”

“Memo No.PF­25/7/18/2005­2TCP; Date : 5th 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

6th July, 2013 for setting up of a group housing colony on its land

8
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

2014 dated 6th 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

respondent by order dated 16th September, 2011, the appeal

preferred at their instance came to be dismissed by an order dated

20th 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

order dated 6th July, 2013 and 6th 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

9
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

course of proceedings by an order dated 13 th 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?”

16. In pursuance to the order of the High Court dated 13 th August,

2015, additional affidavit dated 19th August, 2015 was filed by the

second respondent relying upon the practice followed after 5 th July,

2012, of which reference has been made earlier. It was, inter alia,

stated that as per the practice followed after 5 th July, 2012,

applications have been considered for grant of licence in a high and

10
hyper potential zones only on the basis of the Final Development

Plan published under Section 5 of the 1963 Act and there was no

prescribed policy before 5th 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

11
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

policy dated 10th 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

12
pending and future applications in terms of its policy of 2017 in a

fair and transparent manner, taking note of the judgment

impugned of the High Court dated 26th 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

the guidelines and instructions dated 5th 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

13
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

prescribed policy before 5 th 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

Plan, and submits that although the policy­instructions dated 5 th

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

Appellants and other contenders submitted their applications on 4th

October, 2010 when the Draft Development Plan was published,

however, the Final Development Plan was published on 24 th May,

2011, still the licences were granted to the Appellants on 6 th July,

2013/6th 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

14
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.

15

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

dated 1st October, 2010 came to be published on 4 th 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

16
circumstances, the allotment was made within the cap of 20% in

Sector 63­A for development of group housing society, as indicated

in the public notice dated 4 th 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

17
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

that neither in the public notice dated 1st October, 2010 which

came to be published on 4th October, 2010, nor in the Final

Development Plan dated 24th May, 2011, nor in policy instructions

which came to be circulated by the Respondents at a later stage on

5th 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

18
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

land use cases dated 19th December, 2006 which was made

effective retrospectively from 7th 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

publication of public notice dated 4th 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

public notice dated 4th 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

19
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,

inviting applications pursuant to the public notice dated 4 th

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

dated 19th December, 2006, pursuant to which the public notice

came to be published on 4 th October, 2010 with a clarification

being made of the policy of the Government dated 5 th 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

public notice dated 1st October, 2010 came to be published on 4 th

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

21
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.

22

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 :­

23
“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

substantive question under its order dated 13th 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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