CIVIL WRIT PETITION NO.5950 OF 2009 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: MARCH 15 , 2011 M/s Coral Realtors Pvt. Ltd., New Delhi .....Petitioner VERSUS Haryana Urban Development Authority, Panchkula and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Arun Jain, Sr.Advocate with Mr. Sanjay Vij, Advocate, for the petitioner. Mr. Arun Walia, Advocate, for the respondents. **** RANJIT SINGH, J. The petitioner is a successful auction purchaser of a multiplex in Sector 55, 56 Gurgaon and has succeeded in his bid by offering an amount of over `73 crores against the reserved price of `6.01 crores. The petitioner has already deposited a sum of Rs.7,34,04,000/- on the spot being 10% of the bid amount. The petitioner thereafter deposited Rs.11,00,96,000/- within thirty days being 15% of the bid amount to constitute 25% of the total sale CIVIL WRIT PETITION NO.5950 OF 2009 :{ 2 }: consideration. Thereafter, the petitioner was issued an allotment letter on 26.3.2007. He has now approached this court with a grievance that Floor Area Ratio (FAR) permitted in this case is only 125%, whereas the other multiplexes in the District and City Centre in the sectors are permitted the FAR of 150%. This being a huge difference in the same town is termed as unfair and, thus, a prayer is made to increase the FAR in the case of petitioner to 150% from 125%. The petitioner has been forthright in disclosing that as per the terms and conditions, the FAR mentioned in the advertisement was 125% only, but would point out to the fact that all the bidders, who were present at the spot and were intending to participate, had objected to the same on the ground that the FAR permitted in other multiplexes was 150% and this be also increased to bring it in conformity with the other sites. It is stated that the officer present at the time of auction had assured the bidders that the FAR for this multiplex, going to be sold, would also be increased to 150% instead of 125% as mentioned in the advertisement. He accordingly convinced the bidders to participate in the auction. The petitioner would state that believing him, he participated in the auction and was successful. Since the petitioner was contemplating to raise construction, he wrote a letter on 13.6.2007 to Chief Administrator, HUDA for increasing the FAR. The Chief Administrator asked Administrator, HUDA Gurgaon to offer his comments. The Administrator, in his response, stated that the petitioner and other bidders had raised the demand for increasing FAR of the site to CIVIL WRIT PETITION NO.5950 OF 2009 :{ 3 }: 150% and that he had informed them that the case for increase of FAR would be sent to bring it at par with prevailing FAR allowed in other multiplex sites. As per the Administrator, the FAR of 125% was allowed because of the zoning plan. The petitioner accordingly had submitted building plans for FAR of 150%, but same was not increased from 125% to 150%, though the fees for sanction of the same was got deposited by the petitioner with the respondent authorities for FAR of 150%. The Chief Administrator has declined the request of the petitioner on 16.10.2008 by observing that conditions of the auction cannot be allowed to be modified. The petitioner rather would point out that now the respondents are permitting FAR of 175% and in other parts of State of Haryana, FAR for multiplex sites is 150%, which is evident from the letter written by the Administrator. Aggrieved against the decision of the Chief Administrator in declining the request of the petitioner, he has filed this writ petition. The respondents in their reply would plead that no right of the petitioner is infringed for him to invoke writ jurisdiction of this court. It is pointed out that FAR of the multiplex as published in the advertisement was 125% and the same cannot, therefore, be increased. The respondents otherwise have admitted that fee of Rs.40,500/- was deposited by the petitioner, which is a fee for FAR of 150%, but this is stated to be done on his own by the petitioner, which would not be of any consequence. The question, thus, which arises for consideration is whether the petitioner can seek increase of FAR to 150% or not. After completion of pleadings, a lot of supplementary pleadings have CIVIL WRIT PETITION NO.5950 OF 2009 :{ 4 }: been filed by the petitioner as well as by the respondents. The petitioner in support was primarily relying upon some sort of promise advanced by Administrator at the time of auction, whereas the respondents would mainly rely upon the zonal plan prepared to say that the FAR could not be increased from 125% to 150%. The petitioner apparently has based his case on Annexure P-7, which is a communication addressed by Administrator to Chief Administrator. In this communication, the Administrator had clearly mentioned that at the time of auction, the applicant and other bidders had raised demand for increasing FAR of the site to 150%. DTP Gurgaon had then informed that since it was an old approved zoning plan, FAR of only 125% was allowed. It is mentioned in the letter that it was given out that case for increasing FAR to 150% would be sent for bringing it at par with the prevailing FAR allowed in other multiplex sites. Not only that, the Administrator also mentioned that to have uniformity of norms, the request of the applicant for increasing FAR may be considered. Since this communication is the main base of prayer made by the petitioner, it would be useful to reproduce the same for understanding and appreciation:- “In the matter, this is to apprise you that in the advertisement as well as in the hand bills the prescribed FAR for multiplex site of Sector 55-56 has been mentioned as 125%. One copy each of advertisement and hand bill as desired are sent herewith for your ready reference. D.T.P.Gurgaon has confirmed on telephone that the zoning plan of the site was also displayed at the time of auction. However, in the matter, it is stated that at CIVIL WRIT PETITION NO.5950 OF 2009 :{ 5 }: the time of auction, the applicant and other bidders had raised the demand for increasing FAR of the site to 150%. DTP Gurgaon had then informed that since it was an old approved zoning plan, FAR of only 125% was allowed but the case for increasing FAR to 150% would be sent for bringing it at par with the prevailing FAR allowed in other multiplex site. In view of the above stated facts and to have uniformity of norms, the request of the applicant for increasing FAR from 125% to 150% may be considered.” On the other hand, the stand of the respondents was that the FAR was as per the zonal plan. So, it may not be possible to increase the same. The court had then required the respondents to produce the zonal plan. Initially, an application was filed to place on record the sectorial plan, which was dismissed as not pressed as requested by counsel for HUDA. Subsequently, zonal plan of Sectors 23, 23-A, 47 and 56 was placed on record. The respondents have also placed on record an additional affidavit on behalf of Estate Officer to say that the zonal plan of multiplex Cinema in District Shopping Centre of Sector 56 was approved by Chief Administrator, HUDA and no further revision of this plan has been held till date. The petitioner has placed on record Annexure P-23, which is a typed copy of application and also Annexures P-24 to P-28, which are stated to be essential for resolving the controversy. On the basis of material placed on record, Mr.Arun Jain, Senior Advocate, has submitted that in all District Centres and City CIVIL WRIT PETITION NO.5950 OF 2009 :{ 6 }: Centres, FAR of 150% is allowed and there is no justifiable reason as to why the same FAR shall not be allowed to bring the site of the petitioner at par with the others. The counsel would also submit that he had participated in the bid as per the assurance given to him at the time of auction, which is clearly reflected in the communication Annexure P-7 reproduced above. The counsel, thus, pleads that the petitioner could have legitimate expectation that the FAR would be increased to 150% as was stated at the time of auction and the doctrine of legitimate expectation would come to the rescue of the petitioner for increasing the FAR. This would be needed to maintain uniformity in all the District Centres and City Centres. The counsel has placed strong reliance on a Division Bench decision of this court in M/s Ganpati Shopping Mall Pvt. Ltd. Vs. State of Haryana, 2007(1) PLR 43. This court has viewed that once the petitioner company had acted on representation of the respondents and had participated in the auction depositing huge amount, besides incurring expenditure on the building plan etc., then it would not be open to the respondents to back out from the said stipulation/representation at the later stage. The prayer in this case was also to permit FAR of 150% to the petitioner company qua the site of multiplex. A perusal of this judgment would show that the stand taken by the respondents in this case was that as per policy of HUDA, FAR of 150% is allowed for multiplex site situated in the City centre, whereas for other multiplex sites, only FAR of 125% is allowed. Against this stand, it was noticed by the court that advertisement for multiplexes at Jind was issued indicating FAR of CIVIL WRIT PETITION NO.5950 OF 2009 :{ 7 }: 150%, thus, the plea that FAR of 150% was allowed for multiplex sites situated in City Centre was found factually incorrect. The court accordingly allowed the petition by invoking a doctrine of promissory estoppel. That plea of promissory estoppel may get attracted in this case as promise was made at the time of auction. This promise was made at the time of auction and the petitioner could rightly expect that the same will be honoured. Indeed, the Administrator, HUDA took up the case with the Chief Administrator for increasing the FAR to 150%, which clearly shows that such a promise was made at the time of auction and it was not to the petitioner alone but for all the persons, who had come to participate in the bid. In my view, the doctrine of legitimate expectation would also come into play. The doctrine of legitimate expectation is by now well recognised. This doctrine has been described in the Halsbury's Laws of England 4th Edition in the following words:- “A person may have a legitimate expectation of being treated in a certain way by an administrative authority even though he has no legal right in private law to receive such treatment. The expectation may arise either from a representation or a promise made by the authority, including an implied representation, or from consistent past practice.” In Food Corporation of India V. Kamdhenu Cattle Feed Industries, (1993) 1 SCC 71, the Hon'ble Supreme Court observed that mere reasonable or legitimate exception of a citizen may not by itself be a distinct enforceable right, but failure to consider and give CIVIL WRIT PETITION NO.5950 OF 2009 :{ 8 }: due weight to it may render the decision arbitrary and this is how the requirement of due consideration of a legitimate expectation forms part of principle of non-arbitrariness, a necessary concomitant of the rule of law. It is also observed that every legitimate expectation is a relevant factor requiring due consideration in a fair decision-making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever this question arises, it is to be determined not according to the claimant's perception but in large public interest wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of a claimant. In Union of India Vs. Hindustan Development Corporation, (1993) 1 SCC 499, it was observed the expectation cannot be the same as anticipation. It was termed as different from a wish, desire or a hope. As is observed, however, earnest and sincere a wish, a desire or a hope may be and however confidently one may look into them to be fulfilled, they by themselves cannot amount to an assertable expectation and a mere disappointment does not attract legal consequences. The legitimacy of a moral expectation can be inferred only if it is founded on a sanction of law or custom or an established procedure followed in a regular or natural sequence. It is distinguishable from a genuine expectation. Such expectation should be justifiably legitimate and protectable In Sethi Auto Service Station Vs. DDA (2009) 1 SCC 180, the court after making reference to number of precedents observed that:- “the golden thread running through all these decisions is that a case for applicability of the doctrine of legitimate CIVIL WRIT PETITION NO.5950 OF 2009 :{ 9 }: expectation, now accepted in the subjective sense as part of our legal jurisprudence, arises when an administrative body by reason of a representation or by past practice or conduct aroused an expectation which it would be within its powers to fulfil unless some overriding public interest comes in the way. However, a person who bases his claim on the doctrine of legitimate expectation, in the first instance, has to satisfy that he has relied on the said representation and the denial of that expectation has worked to his detriment. The Court could interfere only if the decision taken by the authority was found to be arbitrary, unreasonable or in gross abuse of power or in violation of principles of natural justice and not taken in public interest. But a claim based on mere legitimate expectation without anything more cannot ipso facto give a right to invoke these principles.” Applying the above noted principles to the facts of the present case, it can be noticed that the petitioner was clearly given to understand that FAR for multiplex site was likely to be increased from 125% to 150%. This is well documented from the communication which was addressed in this regard by Administrator to Chief Administrator, HUDA. The case of the increasing FAR was to be sent for bringing at par with the prevailing FAR allowed in the other multiplex sites. The petitioner along with others bidders had accordingly participated in the bid. In this background, it is to be seen whether the petitioner could legitimately expect the increase in the FAR from 125% to 150%. Such an expectation as per law may arise CIVIL WRIT PETITION NO.5950 OF 2009 :{ 10 }: either from a representation or a promise made by an authority. This was an implied representation that this FAR would be increased to 150%. This is also in line with the practice as FAR of 150% is being allowed in the prevailing multiplex sites. This could not be termed only as a wish, a desire or a hope. It is also not a case of mere disappointment. The legitimate expectation in this case can be inferred as it is founded on the sanction of law or a custom and also by an established procedure. The FAR of 150% is now routinely allowed and was not made applicable in this case, it being a old zoning plan. The person participating in the auction could reasonably expect that the promise advanced for changing it to be 150% FAR would be available. The petitioner has made out a case that he had relied upon the representation and denial of this expectation has worked to his disadvantage. To an extent, it can be said that the decision of the authorities now not to grant the same may sound little arbitrary as same FAR is now routinely allowed in all multiplex sites. As already noticed, even the doctrine of promissory estoppel would be attracted to the facts of the present case. In Motilal Padampat Sugar Mills Co. Ltd. Versus State of U.P., (1979) 2 SCC 409, it is held that true principle of promissory estoppel seems to be that where one party has by his words or conduct made to the other a clear and unequivocal promise which is intended to create a legal relations or affect a legal relationship to arise in the future, knowing or intending that it would be acted upon by the other party to whom the promise is made and it is in fact so acted upon by the other party, the promise would be binding on the party making it and he would not be entitled to go back upon it. The law, therefore, CIVIL WRIT PETITION NO.5950 OF 2009 :{ 11 }: can be taken to be settled that where the Government makes a promise knowing or intending that it would be acted on by the promise, in fact, the promisee, acting in reliance on it, alters his position, then the party would be held bound by the promise and the promise would be enforceable against the person extending such a promise. This proposition of law was reiterated in Union of India Versus Godfrey Philips India Ltd., (1985) 4 SCC 369, wherein it was observed as under:- “Of course we must make it clear, and that is also laid down in Motilal Sugar Mills case that there can be no promissory estoppel against the legislature in the exercise of its legislative functions nor can the government or public authority be debarred by promissory estoppel from enforcing a statutory prohibition. It is equally true that promissory estoppel cannot be used to compel the Government or of the public authority to make. We may also point out that the doctrine of promissory estoppel being an equitable doctrine , it must yield when the equity so requires; if it can be shown by the government or public authority that having regard to the facts as they have transpired, it would be inequitable to hold the government or public authority to the promise or representation made by it, the Court would not raise an equity in favour of the person to whom the promise or representation is made and enforce the promise or representation against the government or public authority. The doctrine of promissory estoppel CIVIL WRIT PETITION NO.5950 OF 2009 :{ 12 }: would be displaced in such a case, because on the facts, equity would not require that the government or public authority should be held bound by the promise or representation made by it. This aspect has been dealt with fully in Motilal sugar Mills case and we find ourselves wholly in agreement with what has been said in that decision on this point.” There are no reasons seen to displace the aspect of equity so as to relieve the respondents from the promise made to the petitioner. Rather equity seems to be so resting with the petitioner. The totality of the facts and law, as noticed above, would show that the petitioner company had acted on a representation and a promise held by the respondents which is clear. The petitioner had participated in auction on the basis of representation so made and has incurred huge expenses. In view of the above, the principles of doctrine of promissory estoppel and legitimate expectation are fully attracted to the controversy raised in the petition. The respondents would be bound to permit FAR of 150% to the petitioner company qua the site of the multiplex at Gurgaon. The writ petition is accordingly allowed and a direction is hereby issued to the respondents to sanction the building plan of the petitioner company by permitting them FAR of 150% qua the multiplex at the site which was purchased by the petitioner company and to issue a revised re-allotment letter mentioning the aforesaid FAR of 150%. The necessary process in this regard be completed by CIVIL WRIT PETITION NO.5950 OF 2009 :{ 13 }: the respondents within a period of three months from the date a certified copy of this order is received. March 15, 2011 (RANJIT SINGH ) ramesh JUDGE