India SUPER CORRIDOR INDORE

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• Since common facts and grounds are involved in WP No. 15509/2018 and WP No. 15646/2018 hence both the writ petitions have been heard and are being decided together.

2. The petitioner has filed the present petition being aggrieved by the publication of NIT by the respondents Indore Development Authority ('IDA' in short ) for sale of 16 residential free hold plots within the Sector E, Scheme No.94, Indore.

3. The respondents IDA issued an advertisement No.79/94 dated 27.07.1993 for allotment of residential plots in the Sector-E of Scheme No.94, Indore. In pursuant to the advertisement the petitioner submitted an application and the same was accepted after following due procedure. That vide letter dated 12.9.1994 he was allotted plot No.121/EA (area 216.00 square meters on lease for the period of 30 years in total premium amount of Rs.3,24,000/-. At the time of allotment petitioner had deposited 50% of premium amount and further deposited remaining amount in 12 months within the prescribed time. The petitioner made a request to the respondents for handing over the possession of the said plot. The respondents stated that vacant possession of the plot will be handed over after development of the scheme. Thereafter, the petitioner made several request and representations, but physical possession of the plot was not handed over to him on the pretext that some civil dispute is pending, development has not been done etc. land is under encroachment etc. Now the IDA has published an advertisement in the daily newspaper dated 3.7.2018 for sale of 16 residential plots in Sector-E of Scheme No.94. The petitioner immediately served a legal notice to a respondents that if the plots are vacant and available, then the petitioner is entitled to get the possession in view of the allotment made to him on 12.09.1994 in Sector-E of Scheme No.94. Thereafter, the present petition has been filed by the petitioner, challenging the impugned advertisement dt.3.07.2018.

4. By order dt.16.07.2018, this court issued a notice to the respondents and by way of interim relief permitted them to complete the process of allotment, but there shall be no finalization, without prior leave of this court.

5. After notice, the respondents have filed their return admitting the allotment of plot No.121/EA in favour of the petitioner and also not disputed that he has deposited the entire premium amount. It is contended by the respondents that due to pendency of civil dispute, before the court, the development of work of certain plots including the petitioner's plot in Sector E could not be completed. There were as many as 105 plots, which could not be developed and the possession could not be given to allottees despite they completed all the formalities and an allotment letters were issued in their favour. In order to consider the grievance of the petitioner, the IDA decided to form the committee. The committee was constituted vide resolution no.407, dated 22.10.2001. The committee made a various recommendations. In order to comply the said recommendation, the Board of IDA vide resolution No.204 dated 4.8.2002 had resolved that in respect of various plots of Sector E, the allottee who have deposited the entire amount, but could not be given the possession may be allotted the plot in Sector F of Scheme No.94. Accordingly, the letters were issued on 30.8.2002 to all the allottees but 29 allottees gave their consent . The similar notice was issued to the petitioner and thereafter vides another letter dt.23.11.2004, consent was sought from the petitioner and others, and thereafter, lottery was held. Since the petitioner did not give consent and was not ready to accept the alternate plot in Sector F, therefore, he could not be allotted the plot.

6. It is further submitted that the respondents have held various lotteries in compliance of resolution dt.14.08.2002 and majority of the plot holders, 86 in numbers have been allotted the plots in Sector F. Now at this stage, there are as many as, 18 allottees including the petitioner who are still awaiting the allotment of the plot in Sector E. It is further submitted that at present there are 4 plots available in Sector F of 162 Sq. Mtr, area viz. plot nos. 5A, 6, 14 and 17. There are two more plots having area 300 Sq. Mtr. or more viz. T-1 & T-2, but the same cannot be allotted to the petitioner. The petitioner is insisting for allotment of plots in Sector E and not even ready to accept the plot available in Sector F, therefore, he has no right to challenge the impugned advertisement. By impugned advertisement dt.2.07.2008, the respondents are going to sale free hold plots and the same cannot be inter change with the plot of the petitioner in view of the fact that he is having allotment of lease hold plot for the 30 years . Under Rule 5 of M.P. Vikas Pradhikarno Ke Sampatiyo Ka Prabandhan Tatha Veyan Niyam, 2013 (herein after referred as the Niyam of 2013'). The disposal of property can only be done by inviting bids in a seal cover or by draw of way of process of lottery at predetermined price. The answering respondents shall be undertaking another lottery process in respect of remaining plots No.5A, 6, 14 and 17 admeasuring 162 Sq. Mtr, situated in Sector F of 94. The petitioner and the similarly placed 18 persons may give their consent for participation in the lottery.

7. Being dissatisfied with the averments of the return, petitioner has filed the rejoinder. It is further submitted that in pursuant of resolution dt.14.08.2002, plots were not allotted in Sector F, but in Sector E itself and this is clear from the contents of Annexure R/6. It is further submitted that the respondents have adopted discriminating attitude with the petitioner as in case of five allottees, the respondents have allotted them a plot in Sector E itself. Their names are Sandhya Choukliya, Ravindra Singh Lodha, M.L. Malhotra, Ashok Kumar Sharma and Chaganlal Kothari. Copies of the allotment letters have also been filed along with the rejoinder. These five persons have been accommodated in the year 2011 and 2013. Now the respondents are having vacant plots in Sector E itself for which they are going to sale by way of NIT but same can be transferred to the petitioner as he is waiting for possession since almost 20 years.

8. In order to deny the averments made in the rejoinder, the respondents have filed the additional reply by submitting that Annexure R/6, has wrongly been annexed due to inadvertent mistake whereas, as per the pleading, it is quite clear that in compliance of resolution dt.14.08.2002, the notice was issued to all affected allottees of Sector-E, Scheme No. 94. The respondents have admitted that 5 persons were allotted the plots in the year 2011 and 2013, without adopting the process of lottery and that was the mistake on the part of IDA, which cannot be permitted to perpetuate by doing another wrong. The petitioner cannot claim negative parity. That mistake was done only in case of Smt.Sandhya Choukliya and Shri M.L. Malhotra, but in case of Ravindra Singh Lodha and Chaganlal Kothari, they have been allotted the plots in Sector F as plots no.158-B, S1 and 204A, respectively. The plots which are the subject matter of the impugned tender have recently became free from the litigation are available for allotment after following the process as per Niyam 2013. At the most, the petitioner can be allotted No.5A, 6, 14 and 17 admeasuring 162 Sq. Mtr, situated in Sector F of 94, if petitioner is ready to participate in the process of lottery. It is further pleaded that these are two plots T1 and T2 in Sector F, which are vacant. However, these plots having large area then the plot allotted to the petitioner, but disposal of this will be undertaken as per Rule 5 and 6 of Niyam of 2013. The various letters were written to the petitioner on address available with the IDA, but the petitioner did disclose her new address, therefore, the writ petition is liable to be dismissed.

09. In order to resolve the controversy between the parties amicably, this court vide order dt.28.09.2018 made a query from the IDA that as to why both the writ petitioners cannot be allotted the vacant two plots i.e., T1 and T2 of Sector F. It is submitted by filing an affidavit in both the writ petitions by IDA that in pursuant to the resolution dt.14.08.2002, as many as, 94 allottees of Sector E have been allotted the plot in Sector F of similar size . Now six plots are remaining in Sector F of Scheme 94 and there are as many as 18 affected allottees of Sector E. The petitioners are not entitled for plot no.T1 and T2 because of its bigger area more than the area of an allotted plot to them in Sector E. For remaining 4 plots 5A, 6, 14 and 17, the IDA has taken a decision to go for one more lottery process and the petitioners can participate in the said lottery process. It is further submitted that IDA cannot undertake the division of plot No.T1 and T2, situated in Sector F. These plots are reserved for residential use and under the Rule 22(b)(3) of Bhoomi Vikas Niyam, 2012, the division of plot is not permissible. The provisions of Niyam 2013, are binding on the IDA being a public authority. It is further submitted that number of writ petitions are pending in respect of the challenge to the Scheme No.94 before this court seeking quashment of the entire scheme under the provisions of Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation, and Resettlement Act, 2013.

10. I have heard Shri Ajay Asudani Advocate and for the petitioner in their respective petition and Ms. Mini Ravindran, Advocate for the respondents at length.

11. The main contention of the learned counsel for the petitioner is that the petitioner had been allotted the plot in the year 1993. He had paid the entire premium amount without any delay and default. Initially respondents could not hand over the possession for want of development. Thereafter, in order to accommodate the petitioner and similarly placed persons, the respondents have passed a resolution for allotment of plot in Sector F of Scheme No.94 , which was not acceptable to the petitioner as the allocation of plot in sector No.E and allocation of allotted plot in Scheme F are all together were different, but by the passage of time in order to settle in life the petitioner is ready to accept one of the plot from T1 or T2 in Sector F of Scheme No.94 and also ready to deposit the difference of amount because the area of plot is larger than the area of the plot allotted to her. He is also ready to pay the difference of the amount as per the current market guidelines. The provisions of Niyam 2013 would not apply in case of the allotment of the plots to the petitioner by way of exchange because he got the allotment prior to the coming into the force of Niyam 2013.

12. Learned counsel for the petitioner has further emphasized that now 13 plots are available in the Sector E itself and in order to fetch the higher amount they are being sold in the market as a free hold plot. The petitioner was allotted a plot for the 30 years lease period, but the same is extendable, hence there is no deference between lease hold plots and free hold plots . Since the respondents are not ready to allot the plot T1 and T2 to the petitioner then, he is entitle to get one plot from the so called free hold which have been put into the auction in the NIT dt.03.7.2018.

13. Ms. Mini Ravindran, Advocate for the respondents submitted that the IDA is being the public sector is bound by the Niyam 2013. It is not in dispute that the petitioner was allotted the plot and he had paid the premium amount, but was not given the possession because initially there was delay in development due to encroachment and litigation, thereafter, the Board constituted the committee and on its recommendation, the resolution was passed to allot the plot in Sector F in the same scheme no. 94. Those 94 allottees have been accommodated and only 18 are remaining. The four plots are available in Sector F, which can be allotted to the petitioner by way of lottery amongst 18 persons. Plot T1 and T2 cannot be allotted as they are having a bigger size and the division of residential plots is not permissible. It is further submitted that two plots have wrongly been allotted to Smt.Sandhya Choukliya and Shri M.L. Malhotra in Sector E. Now the advertisement has been issued for sale 13 free hold plots in the Sector E of Scheme 94. The petitioner cannot claim the allotment from these plots as he is allottee of lease hold plot. In support of her contention, he has placed reliance on the judgment of the Apex Court in the case of Kastha Niwarak Grah Nirman Sahakari Sanstha Maryadit, Indore V/s. Presient, Indore Development Authority reported as 2006 (2) SCC 604 in which the Apex Court has held that the party cannot claim that since something wrong has been done in another case direction should not be given for doing another wrong. It would not be setting a wrong right but would be perpetuating another wrong. In such matter there is no discrimination involved. In view of the above, he prayed for dismissal of the writ petition.

14. That the facts of the case are not in much dispute so far it relates to the allotment of the plot to the petitioner and payment of premium amount without any delay and default. It is also not in dispute respondents could not allot the plot within time for want of development purpose. In the year 2002, there were more than 100 allottee of Sector E who could not be given possession despite allotment. Therefore, the Board of IDA passed the resolution on 24.08.2002, for allotment of plot in Sector F of Scheme 94, but the allotment would be made through lottery. The consent was sought from the petitioner also, but he did not give the consent for allotment of the plot in Sector F at the relevant time.

15. The respondents have produced the original note shet of Scheme No.94, Ring Road. Annexure R/6 has been filed along with the return in support of the pleading that the plots have been allotted in Sector F to those allottee who could be given possession. That Annexure R/6 is available in the note sheet at page No.113, which was written and approved prior to the decision taken by way of resolution no.207 dt.14.08.2002, therefore, one fact is established that 29 allottees of Sector E have been allotted the plots in the sector E itself by way of lottery system. The contention of the learned counsel petitioner cannot be accepted that the respondents have wrongly filed the affidavit by submitting that the 29 allottees were allotted the plots in Sector F. They were allotted the plots in Sector E itself, but prior to the resolution dt.14.8.2002. After the aforesaid resolution all allotments were made in Sector F by way of draw in favour of those allottee who gave their consent to participate in the lottery system. So far the allotment to Sandhya Choukliya, and M.L. Malhotra is concerned, the respondents have stated that it was a mistake and in light of the Apex Court judgment Kastha Niwarak Grah Nirman Sahakari Sanstha Maryadit, Indore (supra), the concept of equal treatment on the logic of Article 14 of the Constitution of India cannot be pressed into the service in each case, as a party cannot be claim that since something wrong has been done in another case a direction should be given for doing another wrong in her case.

16. It is also not in dispute that the petitioner is waiting for allotment of the plot since 1994, especially when he had paid all the premium amount to the IDA. It is also not the case that the IDA was not concerned about the problem of petitioner and similarly placed persons for allotment of the plots because 94 similarly placed persons have been allotted the plots in Sector F of the same scheme. Now only 18 allottees are left for the allotment including the petitioner, but so far IDA is concerned, they are concerned about allotments to all 18 similarly placed allottee, but before this court only the petitioner have filed the petitions seeking allotment of the plot by challenging the impugned advertisement. Though the petitioner has a good prima facie case to challenge the advertisement because now the respondents have 13 plots in Sector E of Scheme 94 for allotment but they are going to sale as a free hold. This scheme no.94 was initiated in the year 1994. These plots were available, but could not be allotted because of the some encroachment over there and litigations were pending and at that time also had these plots were available same would have been given on possession to the allottees as lease hold plots. Now in order to earn more revenue the IDA has decided to sale as free hold plots, but fact remains that the IDA has not been establish to do the business like property developer or coloniser or builders it is a Government body must act in the interest of the citizen of this country in order to provide the residential accommodation to them. The present petitioner who is waiting since 1994 has locus and cause to challenge the impugned advertisement. The respondents have exchanged two plots in case of Smt. Sandhya Choukliya and M.L. Malhotra in the same sector in the year 2011 and 2013 in Scheme No.94, not by way of lottery. Legally that was permissible because they were allottee like petitioner and they were allotted another vacant plot. The allotment in favour of the petitioner have been done in 1994 and the scheme was introduced in 1994, therefore, the provisions of Niyam 2013 would not apply in case of inter change of the plot between one sector to another sector. In view of above the petitioner is having legitimate expectation for taking possession of plot from the respondents IDA.

In case of Ram Pradesh Singh v. State of Bihar, reported in (2006) 8 SCC 381, the Apex court has explained the principal of legitimate expectation

13. Realising that the appellants had no contractual or statutory right, learned counsel for the appellants sought to derive support for the claim on equitable considerations, by placing reliance on an amalgam of the principles relating to legitimate expectation, fairness in action and natural justice, reiterating the contentions urged before the High Court.

14. It may be true that when the Board took over the undertakings of the erstwhile private licensees several decades ago, it also took over the services of the employees of such private licensees. It is also possible that this Court in exercise of its jurisdiction under Article 142, on the facts of a given case, might have directed that the persons, whose services had been terminated on account of closure of an instrumentality of the State, be continued in the service of government departments or these government corporations. It may also be true that certain enactments providing for transfer of undertakings in pursuance of nationalisation or otherwise, had also provided for continuation/transfer of the services of the employees of the undertakings to the transferee. But these do not attract the principle of "legitimate expectation".

15. What is legitimate expectation? Obviously, it is not a legal right. It is an expectation of a benefit, relief, or remedy that may ordinarily flow from a promise or established practice. The term "established practice" refers to a regular, consistent, predictable, and certain conduct, process or activity of the decision-making authority. The expectation should be legitimate, that is, reasonable, logical and valid. Any expectation which is based on sporadic or casual or random acts, or which is unreasonable, illogical or invalid cannot be a legitimate expectation. Not being a right, it is not enforceable as such. It is a concept fashioned by the courts, for judicial review of administrative action. It is procedural in character based on the requirement of a high is degree of fairness in administrative action, as a consequence of the promise made, or practice established. In short, a person can be said to have a "legitimate expectation" of a particular treatment, if any representation or promise is made by an authority, ethics expressly or impliedly, or if the regular and consistent past practice of the authority