Case: RITU MAHESHWARI Vs. M/S. PROMOTIONAL CLUB

it had a right to allotment. In holding otherwise, and proceeding to direct Noida to consider the clubs applications the impugned judgment erred in law. 20. The High Court had directed that the clubs applications should be considered in accordance with law. Noida proceeded to comply with that direction, and reinstate those applications- and, furthermore, consider them in accordance with the existing scheme. The High Court, in contempt proceedings, has taken exception to this course of action- in this courts opinion, in an entirely unnecessary and unwarranted manner. As held earlier, once the legality of closure of the old scheme was undisputed, there was no manner of right inhering with the club, to insist that its claim for any plot had to be considered. If at all, it ought to have applied under subsequent schemes, and waited like other applicants (of that scheme), Noidas interpretation of the High Courts judgment (to consider) in this context, was quite correct. Neither did Noida, in its announcement while closing the old scheme nor in any condition of the 2013 or later scheme, stipulate that old scheme applicants would be dealt with according to the terms of that (i.e. 2010) scheme. This meant that Noida had to consider the clubs applications, in accordance with terms of the prevailing scheme. It did so, and incurred – quite unjustifiably- the wrath of the High Court in contempt proceedings. There is authority for the proposition that when regulations or schemes, or policies change, applicants for their benefits have no inherent right to be considered under the old policy; rather the consideration has to be under the new regime, unless the latter contains an express stipulation to the contrary. 21. In Usman Gani Khatri of Bombay v Cantonment Board 1992 (3) SCR 1 this court affirmed the decision of the High Court, which held that old rules could not be applied, and that new rules were applicable, for considering applications for sanction of buildings. It was held that: In any case, the High Court is right in taking the view that the building plan can only be sanctioned according to the building regulations prevailing at the time of sanctioning of such building plans. At present the statutory bye-laws published on 30.4.1988 are in force and the fresh building plans to be submitted by the petitioners, if any, shall now be governed by these bye-laws and not by any other bye-laws or schemes which are no longer in force now. If we consider a reverse case where building regulations are amended more favourably to the builders before sanctioning of building plans already submitted, the builders would certainly claim and get advantage of the regulations amended to their benefit. Likewise, in Howrah Municipal Corpn. & Ors. v Ganges Rope Co. Ltd. & Ors [2003] Supp (6) SCR 1212. a similar question arose for consideration. The municipal corporation was required to decide an application for sanction, in a time bound manner, by the court. The applicable rules changed. The corporation decided the application in the light of the amended rules. This court, negativing the applicants contention that it had a right to be considered under the old rules, held as follows: 20. The provisions of the Act, therefore, contemplate an express sanction to be granted by the Corporation before any person can be allowed to construct or erect a building. Thus, in ordinary course, merely by submission of application for sanction for construction, no vested right is created in favour of any party by statutory operation of the provisions. In our considered opinion, by the order of the Court dated 23.12.1993 observing that the petitioner is not prevented from applying for further sanction of additional floors above fourth floor and the expectation expressed in the subsequent order of the Court dated 24.6.1994, from the Corporation to decide the pending application for sanction within four weeks, no vested right in favour of the respondent - company can be said to have been created to obtain sanction on the unamended rules, as they existed on the date of their second application. In the light of the above position in law, it is clear that the club could not have claimed that its application had to be dealt with in terms of the old scheme, which had ended in 2012. The direction of the High Court, could only have meant that the applications had to be revived, and dealt with the scheme prevailing as on the date of its consideration, i.e. after 31.07.2019. The interpretation placed by the High Court, that there were existing plots, which could have been dealt with under the old scheme is entirely misplaced. In such events, given that the legality of closure of the old scheme attained finality, there was no question of any land or plot being attached or belonging as it were to an old scheme. If any land or plot, or industrial unit were in fact left-over it was always up to the development authority or agency (here Noida) to determine how they are to be dealt with. The directions issued in contempt proceedings, which are subject matter of another appeal, are accordingly held erroneous. 22. As noticed earlier, the club was allotted a plot, in 2014; it paid substantial amounts. The area of that plot is 4000 square metres. Now, while it is true that this fact could not have been disclosed to the High Court, when filing the writ petition (in 2013), the club, in this courts opinion, had an obligation to disclose it, during the pendency of writ proceedings. This fact was material, given that the jurisdiction invoked is equitable and discretionary. Furthermore, whether the grievance was justified and well founded, given that state agencies develop and allot such industrial units at prices which are reasonable, and that an applicant subsequently succeeded in securing a plot, are relevant facts, which a court should be appraised of. The failure by the club, to do so, in this courts opinion, disentitled it to any relief.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]17. The clubs grievance was that its application was not considered – its representatives were not interviewed. Noida pointed out that it closed or terminated the scheme. In the writ proceeding, the club did not challenge the closure of the scheme; rather its case was that Noidas omission to consider its application for allotment was arbitrary. Once the club accepted the closure of the scheme and did not challenge it, there was no question of its agitating any right or grievance regarding non-consideration of its application. The club does not deny that there were other registrants, similarly circumstanced, who did not secure any allotment. They presumably were treated in the same manner as the club was. In the circumstance, the club could not without establishing any discrimination, merely on the strength of closure of the scheme, allege arbitrariness. It is well established that when a policy decision like the closure or termination of a benefit available to a class of persons, is not challenged, the consequence of such closure (which is the impact on the pendency of those wishing to be considered) cannot ordinarily be subject matter of a grievance. What the club had was a right to be considered for allotment of the plots its applied for, so long as the old scheme subsisted.18. In the opinion of this court, an applicant or registrant of a scheme has no right to insist that they should be provided allotment under a scheme. Much depends on the terms of the scheme. In Delhi Development Authority vs. Pushpendra Kumar Jain 1994 (Supp3) SCR 770 this court had enunciated the applicable principle as follows:8. Now coming to the other ground, we are unable to find any legal basis for holding that the respondent obtained a vested right to allotment on the drawl of lots. Since D.D.A. is a public authority and because the number of applicants are always more than the number of flats available, the system of drawing of lots is being resorted to with a view to identify the allottee. It is only a mode, a method, a process to identify the allottee, i.e., it is a process of selection. It is not allotment by itself. Mere identification or selection of the allottee does not clothe the person selected with a legal right to allotment at the price prevailing on the date of drawl of lots. The scheme evolved by the appellant does not say so either expressly or by necessary implication. On the contrary, Clause (14) thereof says that the estimated prices mentioned in the brochure are illustrative and are subject to revision/modification depending upon the exigencies of lay out, cost of construction etc.19. In the absence of any ambiguity- in the law, and the scheme, the writ petitioner club, in this courts opinion could not have insisted that after the closure of the old scheme (which went unchallenged by it), nevertheless, it had a right to allotment. In holding otherwise, and proceeding to direct Noida to consider the clubs applications the impugned judgment erred in law.20. The High Court had directed that the clubs applications should be considered in accordance with law. Noida proceeded to comply with that direction, and reinstate those applications- and, furthermore, consider them in accordance with the existing scheme. The High Court, in contempt proceedings, has taken exception to this course of action- in this courts opinion, in an entirely unnecessary and unwarranted manner. As held earlier, once the legality of closure of the old scheme was undisputed, there was no manner of right inhering with the club, to insist that its claim for any plot had to be considered. If at all, it ought to have applied under subsequent schemes, and waited like other applicants (of that scheme), Noidas interpretation of the High Courts judgment (to consider) in this context, was quite correct. Neither did Noida, in its announcement while closing the old scheme nor in any condition of the 2013 or later scheme, stipulate that old scheme applicants would be dealt with according to the terms of that (i.e. 2010) scheme. This meant that Noida had to consider the clubs applications, in accordance with terms of the prevailing scheme. It did so, and incurred – quite unjustifiably- the wrath of the High Court in contempt proceedings. There is authority for the proposition that when regulations or schemes, or policies change, applicants for their benefits have no inherent right to be considered under the old policy; rather the consideration has to be under the new regime, unless the latter contains an express stipulation to the contrary.21. In Usman Gani Khatri of Bombay v Cantonment Board 1992 (3) SCR 1   this court affirmed the decision of the High Court, which held that old rules could not be applied, and that new rules were applicable, for considering applications for sanction of buildings. It was held that:In any case, the High Court is right in taking the view that the building plan can only be sanctioned according to the building regulations prevailing at the time of sanctioning of such building plans. At present the statutory bye-laws published on 30.4.1988 are in force and the fresh building plans to be submitted by the petitioners, if any, shall now be governed by these bye-laws and not by any other bye-laws or schemes which are no longer in force now.If we consider a reverse case where building regulations are amended more favourably to the builders before sanctioning of building plans already submitted, the builders would certainly claim and get advantage of the regulations amended to their benefit.Likewise, in Howrah Municipal Corpn. & Ors. v Ganges Rope Co. Ltd. & Ors [2003] Supp (6) SCR 1212. a similar question arose for consideration. The municipal corporation was required to decide an application for sanction, in a time bound manner, by the court. The applicable rules changed. The corporation decided the application in the light of the amended rules. This court, negativing the applicants contention that it had a right to be considered under the old rules, held as follows:20. The provisions of the Act, therefore, contemplate an express sanction to be granted by the Corporation before any person can be allowed to construct or erect a building. Thus, in ordinary course, merely by submission of application for sanction for construction, no vested right is created in favour of any party by statutory operation of the provisions.In our considered opinion, by the order of the Court dated 23.12.1993 observing that the petitioner is not prevented from applying for further sanction of additional floors above fourth floor and the expectation expressed in the subsequent order of the Court dated 24.6.1994, from the Corporation to decide the pending application for sanction within four weeks, no vested right in favour of the respondent - company can be said to have been created to obtain sanction on the unamended rules, as they existed on the date of their second application.In the light of the above position in law, it is clear that the club could not have claimed that its application had to be dealt with in terms of the old scheme, which had ended in 2012. The direction of the High Court, could only have meant that the applications had to be revived, and dealt with the scheme prevailing as on the date of its consideration, i.e. after 31.07.2019. The interpretation placed by the High Court, that there were existing plots, which could have been dealt with under the old scheme is entirely misplaced. In such events, given that the legality of closure of the old scheme attained finality, there was no question of any land or plot being attached or belonging as it were to an old scheme. If any land or plot, or industrial unit were in fact left-over it was always up to the development authority or agency (here Noida) to determine how they are to be dealt with. The directions issued in contempt proceedings, which are subject matter of another appeal, are accordingly held erroneous.22. As noticed earlier, the club was allotted a plot, in 2014; it paid substantial amounts. The area of that plot is 4000 square metres. Now, while it is true that this fact could not have been disclosed to the High Court, when filing the writ petition (in 2013), the club, in this courts opinion, had an obligation to disclose it, during the pendency of writ proceedings. This fact was material, given that the jurisdiction invoked is equitable and discretionary. Furthermore, whether the grievance was justified and well founded, given that state agencies develop and allot such industrial units at prices which are reasonable, and that an applicant subsequently succeeded in securing a plot, are relevant facts, which a court should be appraised of. The failure by the club, to do so, in this courts opinion, disentitled it to any relief.