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Deepak Sharma v. State Of U.P. And Others - WRIT - C No. 48287 of 2005  RD-AH 3937 (4 October 2005)
Court No. 34
Civil Misc. Writ Petition No. 48287 of 2005
Deepak Sharma Vs. State of U.P. and others
Civil Misc. Writ Petition No. 50418 of 2005
Manav Sewa Samiti and others Vs. New Okhla Industrial Development Authority and others
Hon. Dr. B.S. Chauhan, J.
Hon. Dilip Gupta, J.
The petitioner, Sri Deepak Sharma who had responded to the advertisement issued by the New Okhla Industrial Development Authority (hereinafter referred to as the ''NOIDA') for allotment of a residential plot in terms of the ''Residential Plots Scheme-2004 (1) (hereinafter referred to as the ''Scheme') has filed Writ Petition No.48287 of 2005 (hereinafter called the First Petition) for a direction upon the respondents to execute the lease-deed in his favour on the basis of the allotment letter and to accept the balance amount as per the Schedule mentioned in the Scheme. Subsequently by means of the amendment application the petitioner sought the quashing of the order dated 4.7.2005 published in the Times of India and Hindustan Times on 6.7.2005 cancelling the draw of lots held on 2.7.2005.
It is the contention of the petitioner that pursuant to the announcement of the aforesaid Scheme by NOIDA he had submitted an application on 14.12.2004 for allotment of a plot in category "01" and had also deposited a sum of Rs. 50,000/-. The draw of lots was held on 2.7.2005 and the petitioner came to know through the Internet that he had been allotted plot No. 234, Block-C, Sector 122, NOIDA but when the petitioner made enquiries in the NOIDA office, he learnt that the draw of lots had been cancelled.
Pursuant to our order dated 11.7.2005, a counter affidavit was filed on behalf of NOIDA on 19.7.2005 and the records were produced. An Impleadment/Intervention application was also filed on behalf of one Ashok Kumar duly supported by an affidavit containing averments in support of the cancellation of the draw of lots.
On 19.7.2005 another petition filed by Manav Sewa Samiti and 26 others (hereinafter called the Second Petition) also came up before us in which the main reliefs sought were for prohibiting NOIDA from approving draw of lots held on 2.7.2005, for causing an investigation to be done by a suitable agency to determine the liability of individual officers and for holding a fresh draw of lots. On that day we directed that Tata Consultancy Services (hereinafter referred to as ''TCS') and Uttar Pradesh Development System Corporation Limited (hereinafter referred to as ''UPDESCO') should be impleaded as respondents. The matter was next taken up by us on 4.8.2005 when, after hearing the learned counsel for the parties, we passed an order, the relevant portion of which is quoted below:-
"From the deliberations which have taken place today, we are of the opinion that for a proper examination of the dispute raised in this petition, NOIDA may, by means of an affidavit of a responsible Officer, make available the following information:-
(1) What was the total number of applications received by NOIDA in respect of the Scheme Code-2004 (1) for allotment of residential plots in different categories,
(2) The terms and conditions of allotment as made known to the applicants at large,
(3) The Byelaws or codified norms either in the shape of Circulars/letters or resolutions, if any, and such other documents governing the procedure of scrutiny of forms and disposal thereof and the various methods of short listing or defining the Zone of consideration of applicants including disqualifications,
(4) The power of the Authority to relax any of the terms and conditions,
(5) Whether such applications were scrutinized by NOIDA before the draw of lots and if the applications had been scrutinized, then how many of them were rejected as being not in conformity with the terms and conditions stipulated by NOIDA. It should also indicate the specific reason for rejecting such applications,
(6) Whether any attempt was made by NOIDA to find out whether the applicants were genuine persons and if no such attempt was made, then the affidavit must indicate the reason why it was not considered necessary to do so,
(7) Whether any spouse had submitted the application even though the other spouse was already having a plot in NOIDA and whether such applications were entertained,
(8) Whether both the spouses had applied simultaneously under the aforesaid Scheme for allotment of plots and whether their applications had been processed and whether the spouses or any of them were found to be successful in the list of allottees,
(9) What was the last date initially notified by NOIDA for submitting the application forms and how many application forms had been received by that date,
(10) Whether this last date for submission of the application forms had been extended by NOIDA and if so the name of the Officer who had extended the date and for what reason. In such a situation NOIDA should also specifically indicate as to how many application forms were subsequently received during this extended period and the number of successful allottees from amongst those who had submitted the application forms during the extended period,
(11) The procedure of draw of lots and details of such procedure having been adopted in the past."
Thereafter NOIDA filed a counter affidavit in the Second Petition giving a reply to not only the queries contained in the order dated 4.8.2005 but also a detailed reply to the averments made in the said writ petition.
We heard the matter on 24.8.2005 and 25.8.2005 when it transpired that the draw of lots had been held without even scrutinising the application forms as the regular practice in NOIDA was to scrutinise them subsequently at the time of execution of the lease deed. However, Shri Anurag Khanna, learned counsel appearing for NOIDA assured the Court that all the forms which did not fulfill the requirements, as indicated in the Scheme would be rejected and the list of such applicants shall be prepared. The list of all the applicants who are found to be eligible shall also be prepared separately and both the lists shall be produced before the Court.
On 19.9.2005 a supplementary counter affidavit was filed by NOIDA in the Second Petition to furnish the information sought by the order dated 25.8.2005. Three C.Ds. were also submitted containing the list of eligible and ineligible applicants and those applicants who had not mentioned the PAN number in the application forms. However, while examining the records produced by NOIDA, we found that the original file containing the main policy had not been submitted inspite of our order dated 11th July, 2005. We, accordingly, on 23.9.2005 directed the learned counsel for NOIDA to produce the original file and also submit information as to whether NOIDA had received any reply from TCS to the letter dated 05/4/2005 sent by it and if so, to place it on record.
On 27th September, 2005 the original file relating to 2004 (1) Scheme was placed before us and the communication dated 24th September, 2005 sent by NOIDA to its counsel regarding the information sought by us was also produced.
Sri Shashi Nandan, learned Senior counsel appearing in the First Petition contended that a right had accrued to the petitioner upon declaration of the list of successful applicants and the letter of allotment and, therefore, the draw of lots could not have been cancelled and that too without giving any opportunity of hearing to the petitioner; that by the said order all the allotments would stand cancelled en masse without application of mind to the relevant considerations and without any investigation or enquiry and so the order was liable to be set aside and in support of his contention, he relied upon the decision in Onkar Lal Bajaj etc. etc. Vs. Union of India & Anr. etc. etc. AIR 2003 SC 2562; that the allotment could have been cancelled only if there was breach of terms and conditions as contemplated in clause 22 of the Scheme or misrepresentation on the part of the applicant as provided under clause 23 of the Scheme; that the doctrine of promissory estoppel would come into play and NOIDA was bound to give effect to the list of successful applicants declared on the basis of the draw of lots and in support of his contention reliance was placed on the decision in M/s. Sharma Transport Vs. Government of A.P. & Ors. AIR 2002 SC 322 and that since the order does not indicate the reasons for cancellation, the authority cannot subsequently explain its action by way of affidavit as held by the Supreme Court in Mohinder Singh Gill & Anr. Vs. The Chief Election Commissioner, New Delhi & Ors. AIR 1978 SC 851.
Sri Sudhir Aggarwal, learned Additional Advocate General has appeared for the State of U.P. Sri S.M.A. Kazmi, learned Chief Standing Counsel assisted by Sri Anurag Khanna, learned counsel have appeared for NOIDA. Sri Amit Khema, learned counsel has appeared for Sri Ashok Kumar who has been impleaded as respondent in the First Petition and for the petitioners in the Second Petition. They have supported the order cancelling the draw of lots by contending that the facts and circumstances of the case, as they emerge from the record and the affidavits clearly warranted such an action and no interference at all by this Court was called for; that allotment orders consequent to the draw of lots had not been issued and the petitioner was not entitled to any relief; that there was no necessity of giving opportunity of any kind since the draw of lots itself had been cancelled; that clauses 22 and 23 of the Scheme were not attracted; that the doctrine of promissory estoppel cannot be pressed into aid in this case and that the order could be sustained if the records indicate the reasons even if the order did not contain them.
We have carefully considered the submissions advanced by the learned counsel for the parties and have perused the materials available on record.
In order to appreciate the contentions advanced before us, we consider it appropriate to reproduce the relevant provisions contained in the Scheme and they are as follows:-
"Scheme Opens on : 8.11.2004
Scheme Closes on : 7.12.2004
(A) General Applicants -50% Plots in each plot category
(B) Prescribed Reserved Categories -50% Plots in each plot category as per details below
Percentage of reserved categories are as under:-
CATEGORY I : INDUSTRIAL APPLICANTS 17.5%
CATEGORY II & III :COMMERCIAL & INSTITUTIONAL APPLICANTS 10%
CATEGORY IV :VILLAGER APPLICANTS 17.5%
CATEGORY V :NOIDA EMPLOYEE APPLICANTS 5%
(A) ELIGIBILITY FOR GENERAL APPLICANTS:
(a) Applicant should be competent to contract and have attained the age of majority.
(b) Applicant & their spouse/dependent children should not have been allotted in full or in part on lease hold or free hold or hire purchase tenancy agreement basis any residential plot or house or flat by NOIDA. Husband, Wife and their dependent Children will not be eligible for allotment of plot separates and for this purpose they will be treated as a single unit.
(B) ELIGIBILITY FOR PRESCRIBED RESERVED CATEGORY APPLICANTS:
(a) The applicant should be competent to contract and have attained the age of majority.
(b) Only such applicants/Industrial units/commercial establishments or their Managing Director/whole time Director(s)/Proprietor/Partner(s) /Trustee(s) and Tenure-holders/Co-tenure Holders from the land acquired category shall be eligible, where the applicant/Industrial unit/Commercial establishment/Institution/any of its past/present Director(s)/Partner(s)/Proprietor/Trustee(s)/their spouse/dependent children have not been allotted a residential plot/house/flat under any earlier scheme of the Authority (EWS/LIG/DS-I/DS-II/TS-I/TS-TS-II/UDAIGIRI-II HOUSES/FLATS allotted in favour of proprietor/partner/director of industrial unit/institution/Commercial shall be excluded for this purpose.
i. In case of receipt of more than one application from one applicant under this scheme, all the applications of such applicant shall be summarily rejected and money will be forfeited.
ii. Incomplete application form shall be summarily rejected.
iii. Applicant must mention the name of Bank, Bank A/c. No./PAN Number in the application Form.
9. MODE OF ALLOTMENT:
(i) The allotment will be made in two stages. In the first stage, successful applicants for allotment of plots for respective plot categories will be identified. In the second stage, specific plot numbers will be allotted by draw of lots to successful applicants identified in the first stage. The plot numbers will be allotted on the basis of layout plans. As the plots available for allotment suitable in the developing sectors, it will take about 2 years for development works.
Successful applicants for the reserved categories in the first stage will be identified on the basis of seniority as has been indicated above in Clause-1. II Note (SPECIAL ELIGIBILITY CONDITIONS APPLICABLE TO SPECIFIC CATEGORIES).
In general category, successful applicants in first stage will be identified by the draw of lots.
22. CONSEQUENCES OF BREACH OF TERMS AND CONDITIONS:
If the allottee/lessee fails to deposit the due amount within the given time or such extended period as allowed by the Chief Executive Officer, NOIDA or his duly authorized representative or commits any breach of the terms & conditions as laid down in this brochure/allotment letter/lease deed, the allotment/lease shall be liable to be cancelled/determined and deposited amount equivalent to 1% of plot premium shall be forfeited in favour of the Authority and balance deposited amount, if any, will be refunded to the allottee after cancellation. Possession of the plot along with the structure existing thereon, shall be resumed in favour of the Authority and the allottee/lessee shall not be entitled to claim any compensation for the same.
23. CONSEQUENCES OF MISREPRESENTATION:
If the allotment/lease of the plot is obtained by any misrepresentation, suppression of material fact, mis-statement or fraud, allotment/lease of plot may be cancelled/determined and the possession of the plot and building thereon (if exists) may be resumed by the Chief Executive Officer, NOIDA or his duly authorized representative and the allottee/lessee will not be entitled to claim any compensation. Entire money deposited will also be forfeited in favour of the Authority. Besides, Authority will be at liberty to initiate legal/criminal action against such allottee/lessee.
We have very meticulously examined the records relating to the Scheme which have been produced by NOIDA. We find from the same that after the expiry of the extended date 31.12.2004 for submission of the application forms under the Scheme, NOIDA collected the necessary information from the Banks (application forms collection centres) in respect of the applications and then a note dated 4.1.2005 was prepared by the official. A perusal of the said note indicates that directions had been issued by Deputy Chief Executive Officer, NOIDA for getting the computerised draw for allotment of the plots under the Scheme from the TCS and according to the available information, about 1,31,000 application forms had been submitted in the various Banks. The note dated 5.1.2005 in this connection further indicates that notice was taken by NOIDA officials of the fact that TCS was a reputed Company and, therefore, there could be no possible objection in retaining its services for the draw in question. It was also observed in the note that even earlier for the computerised draw of lots held in the years 1998, 2000,2001(1) and 2003(1), the services of TCS had been availed by NOIDA. The aforesaid two notes were placed before the Chief Executive Officer, NOIDA who observed "In the past, TCS has been conducting the draws. We may like to write to TCS for conducting the draw at the earliest". It is on the basis of the aforesaid notes that a communication dated 24.1.2005 was sent by NOIDA to TCS and the relevant portion of the letter is as follows:-
"We are interested in getting computerised draw for allotment of residential plots to the successful applicants under the Residential Plots Scheme Code 2004(1). Under the scheme there are approximately 1.31 lacs applicants against 1250 plots. There will be two draws viz one draw will be conducted for successful applicants in respect of 625 plots against plot code 01,02, 03 and 04 and second draw will be conducted for allotment of specific residential plot after merging the seniority of reserve category of applicants. You are requested to send your proposal for conducting the draw, convenient date and rates for conducting the draw."
Accordingly, to discuss the draw related issues and for preparation of the ''Approach Note', a meeting was held between NOIDA and TCS officials on 22.2.2005. Thereafter TCS sent a communication dated 2.3.2005 to NOIDA enclosing the ''Approach Note' on the assistance of computerisation of the random allotment of plots for general and reserved category and sought approval of the proposal submitted by it. From the records, we find that after receipt of the aforesaid proposal dated 2.3.2005 from TCS, a note was prepared by the official on 10.3.2005 again noticing that TCS had been earlier conducting the computerised draws in 1998, 2000, 2001(1) and 2003(1) successfully without any problems at all and so it had again been asked to submit the proposal for the computerised draw. It was however, pointed out that TCS in its proposal had mentioned that the application forms submitted by its employees/officials for allotment of plots under the aforesaid Scheme should not be cancelled merely on the ground that TCS was conducting the draws, and so TCS may be informed that those involved in the draw process should be such persons who had not submitted applications for allotment of plots. After making this detailed note and also mentioning the amount charged by TCS and the proposed dates, the draft letter to be sent to the TCS in connection with its proposal dated 2.3.2005 was prepared for approval of the Chief Executive Officer and the text of the draft letter runs as follows:-
"Please refer to your letter under reference. The above assignment is being awarded to you with the following observations as per your proposal submitted:-
"That those employees who have applied for allotment of plot in the above scheme may not be involved in the process of computerised draw of lots."
You are requested to proceed with the mock draw and the final draw on 11.4.2005 and 15.4.2005 respectively.
The necessary payment will be arranged accordingly."
The Chief Executive Officer, NOIDA, however wanted to obtain legal opinion regarding the aforesaid condition but before any legal opinion could be submitted, UPDESCO sent a communication dated 17.3.2005 to NOIDA mentioning that it had come to its notice that the contract for allotment of plots through computerised draw had been given to a private firm but it (UPDESCO) was ready to work for NOIDA at the rate of Rs. 16/- per application form. Taking into consideration the aforesaid letter, a note dated 29.3.2005 was prepared by the Deputy Chief Legal Advisor pointing out that there was no guarantee that the employees/officials of the UPDESCO would not have submitted applications for the allotment of the plots and, therefore, he suggested that in order to overcome this problem resort may be taken to the process of a manual draw or in the alternative an administrative decision may be taken for giving the contract to UPDESCO. Subsequently the Chief Legal Advisor in his note dated 1.4.2005 pointed out that the Chief Executive Officers of both TCS and UPDESCO may be asked to submit an undertaking in the form of an affidavit that such employees/officials who have submitted applications for allotment of the plots will not be involved in the draw of lots. The Chairman and Chief Executive Officer NOIDA on 4.4.2005 directed that a communication may be sent to TCS and UPDESCO in this regard and accordingly letters dated 5.4.2005 were sent separately to TCS and UPDESCO.
In the communication dated 5.4.2005 sent to TCS, the names of such applicants, who had submitted application under the Scheme framed by NOIDA was sought and it was also required to submit an affidavit giving an undertaking that such of the employees who had submitted application forms for allotment of plots would not be involved in the draw process, and that if ultimately such information was found to be incorrect, then they shall be liable for criminal action. Surprisingly, reference was made to letter No. 3671 dated 17.3.2005 by which consent had been given for draw of lots whereas no such letter had been sent by TCS but infact had been sent by UPDESCO. A similar letter was sent to the UPDESCO. From the records, we also find that a letter dated 5.4.2005 was sent by UPDESCO to NOIDA in continuation of its earlier letter dated 17.3.2005, again making a request that the assignment of computerised draw in the Scheme may be given to it. UPDESCO thereafter sent another letter dated 6.4.2005 to NOIDA but this letter was a verbatim reproduction of the earlier letter dated 5.4.2005. The Principal Secretary, IT and Electronics also sent a communication dated 7.4.2005 to the Chairman and Chief Executive Officer, NOIDA enclosing a copy of the letter dated 6.4.2005 sent by UPDESCO to NOIDA and made a recommendation for awarding the contract to the UPDESCO. The note dated 8.4.2005 made by the NOIDA official clearly brings out the impact of the aforesaid letter dated 7.4.2005 sent by the Principal Secretary, IT and Electronics because after noting the contents of the aforesaid letter dated 7.4.2005 it has been stated that letters dated 5.4.2005 were sent to both TCS and UPDESCO to submit the affidavit but no reply had been received from TCS and, therefore, in such circumstances, in view of the letter dated 7.4.2005 sent by the Principal Secretary, the conduct of the draw may be awarded to UPDESCO and the draft of the proposal to be placed in the meeting of the NOIDA Board was also submitted. Surprisingly there is no mention in this note about receipt of any undertaking from UPDESCO. The meeting of the Board was held on 15.4.2005 and at item No. 4 it was resolved that the work of conducting the computerised draw in respect of the allotment of the plots under the Scheme be given to UPDESCO. Pursuant to the aforesaid resolution of the Board, a communication dated 20.4.2005 was sent to UPDESCO that it had been awarded the assignment of the computerised draw of lots. UPDESCO was also intimated that it must submit its proposal for the conduct of the draw at the earliest. Thus we find from the facts mentioned above that TCS was replaced by UPDESCO even though it had earlier conducted the computerised draws flawlessly in 1998, 2000,2001(1) and 2003(1).
The mock draw was required to be conducted by UPDESCO on 20.5.2005 after NOIDA had supplied the copy of the CD containing the data of the category wise details of the applicants and the number of plots. UPDESCO was asked to check the data before the mock draw could be done. However, there were procedural problems in the mock draw conducted by UPDESCO on 20.5.2005 as the Software developed "Bugs". Accordingly, a communication dated 21.5.2005 was sent by UPDESCO to the Chairman-cum-Chief Executive Officer, NOIDA pointing out that it would not be possible to hold the proposed computerised draw for allotment on 23.5.2005 and a request for extension of time was made. Ultimately a fresh mock draw was conducted by UPDESCO on 1.7.2005 and the main draw was held on 2.7.2005. There was a lot of hue and cry regarding the manner in which the draw was held on 2.7.2005 and a detailed representation dated 3.7.2005 was submitted by the NOIDA Entrepreneurs Association to the Chairman-cum-Chief Executive Officer, NOIDA in which doubts were expressed about the procedural fairness adopted in the conduct of the draw since most of the plots had been allotted to influential persons. Specific allegations were also leveled against the computerised draw. Upon receipt of the aforesaid letter by NOIDA an immediate meeting of the Administrative Committee was held on 4.7.2005 at 9.30 AM. The said Committee found that the draw of lots suffered from many technical mistakes. It was, therefore, resolved therein that the said draw held on 2.7.2005 be cancelled and the matter be placed before the Board for taking a decision for holding a fresh draw through an Agency to be selected. It is in these circumstances that the draw held on 2.7.2005 was cancelled and notice to this effect was given in the newspapers.
The basic question, therefore, that arises for our consideration in these petitions is whether NOIDA was justified in cancelling the draw of lots held on 2nd July, 2005 and for this purpose, we shall have to examine the records placed before us and the affidavits that have been filed, but before we proceed to examine this contention, we consider it expedient to examine the various steps undertaken by NOIDA leading to the draw of lots on 2nd July, 2005, because in our opinion this will have a great bearing on the actual draw conducted on 2nd July, 2005.
The opening date of the Scheme mentioned in the booklet was 8th November, 2004. Of the total number of 1250 plots, 625 were reserved for general category and an equal number of plots for reserved category. The brochure containing the terms and conditions and the application form were available on payment of Rs. 750/- per brochure and the applicants of general category were required to submit the complete application forms for registration on the prescribed form at the branches of Banks mentioned in the brochure. It was also specifically provided that the Scheme would close on 7th December, 2004. The eligibility requirements for general as well as reserved category applicants were separately mentioned in the brochure and we have quoted the same in the earlier part of this judgment. In the "Note" published in the brochure, it was clearly mentioned that in case of receipt of more than one application from one applicant under the Scheme, all the applications of such applicants shall be summarily rejected and money will be forfeited. It was also mentioned that an incomplete application form shall be summarily rejected and applicants must mention the name of the Bank, Bank Account Number/PAN Number in the application form. The mode of allotment was also provided for in clause 9, according to which, the allotment was to be made in two stages. In the first stage, successful applicants for allotment of plots for respective plot categories were to be identified by draw of lots while in the second stage, specific plot numbers to the successful applicants identified in the first stage were to be allotted by draw of lots.
Having briefly referred to the aforesaid provisions contained in the brochure, we shall examine the following matters which in our opinion, arise for consideration to scrutinise the fairness of the procedure adopted by NOIDA. These relate to the extensions of the closure date of the Scheme, non scrutinisation of the application forms prior to the holding of the draw in a summary manner for finding out those which did not conform to the requirements indicated in the brochure and the manner in which NOIDA proceeded to select the Agency for holding the draw of lots.
Extensions granted to the closure date of the Scheme.
The date of opening of the Scheme and the closure of the Scheme as initially published in the brochure were 8th November, 2004 and 7th December, 2004 respectively. By our order dated 4th August, 2005 we had called upon NOIDA to make available the information mentioned at Serial Nos. 1, 9 and 10 by means of an affidavit. To repeat, we required NOIDA to point out the total number of applications received by it for allotment of the residential plots in various categories and the last date initially notified for submission of the application form and the number of application forms that had been received by that date. The other query was as to whether the said last date had been extended and if so, then for what reason, but in such a situation NOIDA must also indicate how many application forms were received during the extended period and the number of successful allottees from amongst those who had submitted the application forms during the extended period.
In the affidavit filed by NOIDA pursuant to the aforesaid order dated 4th August, 2005 it was stated :
"5. That regarding first information it is most respectfully submitted that for the Residential Plot Scheme 2004(1), 1,70,190 applications were received upto 31-12-2004. Details of the applications received category wise are being given below :-
01 (112.50 Sq. Mtr.) 57477
02 (162-200 Sq. Mtr.) 17728
03 (250-300 Sq. Mtr.) 63518
94 (450 Sq. Mtr.) 31467
The above numbers are inclusive of reserved category. Details of applications received under reserved category are given below:-
01 (112.50 Sq. Mtr.) 824
02 (162-200 Sq. Mtr.) 343
03 (250-300 Sq. Mtr.) 1421
94 (450 Sq. Mtr.) 759
However, out of the total number of applications, 42 applicants took refund before the draw was held and as such the total applicants in unreserved category available at the time of draw were 1,66,801. ..................
11. That with regard information sought in point NO.(9) it is submitted that the last date initially notified in the brochure was 07-12-2004 and upto this date according to the information received from the Bank 72,511 applications were received under all the categories.
12. That regarding the information sought in Point No.(10) it is submitted that the last date for submission of application forms had been extended twice - first time upto 18-12-2004 and the second was upto 31-12-2004. This order extending the last date was done by the then Chairman-cum-Executive Officer, Sri Deo Dutt.
13. That the first time the date was extended by the then Chairman-cum-Executive Officer by order dated 03-12-2004 on the request of the legal heirs of villagers category as they claimed right under Section 171 and 172 of U.P. Z.A. & L.R. Act. A copy of the order dated 03-12-2004 issued by the Deputy Chief Executive Officer after the approval of the Chairman-cum-Chief Executive Officer is being filed herewith as ANNEXURE CA-2 to this Affidavit.
14. That the aforesaid decision to extend the date was taken after carefully examining the request made by the Villagers and a Committee was appointed by the Chairman-cum-Chief Executive Officer consisting of six members who recommended for extending the date by 15 days. A copy of the entire proceedings relating to the aforesaid extension is being filed herewith as ANNEXURE CA-3 to this Affidavit.
15. That the date was again extended upto 31-12-2004 upon the request of public at large and industrialist of Noida. Details of the proceedings relating to the aforesaid approval by the Chairman-cum-Chief Executive Officer is being filed herewith as ANNEXURE CA-4 to this Affidavit.
16. That the details of number of applications forms which were received from 08-12-2004 to 18-12-2004 and from 18-12-2004 to 31-12-2004 are given below:-
Period No. of applications
Between 08-12-2004 & 18-12-2004 37029
Between 18-12-2004 & 31-12-2004 57261
17. That the details of the successful applicants from the applications received upto 07-12-2004 and between 08-12-2004 and 18-12-2004 and further from 19-12-2004 to 31-12-2004 are being given below:-
Period No. of applications
Upto 07-12-2004 213
Between 08-12-2004 & 18-12-2004 153
Between 19-12-2004 & 31-12-2004 259
From the averments made in the aforesaid affidavit it is clear that the date was extended twice by the Chairman-cum-Chief Executive Officer. The affidavit also reveals that by 7th December, 2004, which was the last date for submission of the application forms, 72,511 application forms had been received for 1250 number of plots to be allotted. Thus the applications which had been received by 7th December, 2004 were already about 58 times more than the number of plots to be allotted. The reason indicated in the affidavit for first extending the date from 7th December, 2004 to 18th December, 2004 by the Chairman-cum-Chief Executive Officer, NOIDA is that a request had been made by the legal heirs of ''villagers' category who claimed rights under Sections 171 and 172 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the ''U.P.ZALR Act'). We find from a perusal of the Scheme annexed as Annexure 2 to the Second Petition that the clause relating to eligible villagers, whose land had been acquired by NOIDA, does provide for eligibility of legal heirs under the provisions of Sections 171 and 172 of the U.P.ZALR Act. We, further find that there is no change at all in terms for this category in the subsequent Brochure in which the closure of the Scheme was indicated as 18th December, 2004. This is apparent from Annexure no. 2 of the First Petition. Even if there was some anomaly, as sought to be suggested in this particular clause relating to villagers whose land had been acquired, then the same should have been rectified when the subsequent brochure was issued indicating the last date as 18th December, 2004, but this has not been done. Though specific facts have not been stated in the affidavit filed by NOIDA to indicate what necessitated the extension of date, but from the documents annexed to the affidavit it appears that there was some dispute with regard to the eligibility of the applicants and if that be so, then the forms could have been accepted or rejected on the basis of the decision so taken, but there was no need to extend the date. Thus, we are unable to appreciate the reason given for extending the last date for submission of application forms merely on the request made by this particular category of applicants and that too in respect of even the general category applicants and the other reserved category applicants. It has also not been pointed out in the affidavit as to how many application forms were received in this reserved ''villager' category by 7th December, 2004 and between this date and 18th December, 2004 separately. However, we do find that the real beneficiaries were the applicants belonging to the general category as their number shot up by 37029.
The reason given in the affidavit for second extension from 18th December, 2004 to 31st December, 2004 is that a request was made by the public at large and Industrial Units of NOIDA. A perusal of Annexure CA-4 to the counter affidavit in the Second Petition indicates that a noting was made on 14th December, 2004 that the Deputy Chief Executive Officer, had given telephonic instruction to extend the closure date to 31st December, 2004 and, therefore, the note was put up for giving information to public. However, the subsequent note indicates that some benefit was required to be conferred upon the Industrial Units belonging to the reserved category. It was mentioned in the notice which was subsequently published that initially it was provided that the Industrial Units should have been allotted/transferred an Industrial Plot/Shed by NOIDA/NEPZ in its name on or before 15th June, 2001 and after 16th August, 2004 and the allotment of the Industrial plots should have been done and they should have been declared functional on or before the closing date of the Scheme. Thus the cut-off-dates were on or before 15th June, 2001 and after 16th August, 2004. However, by the public notice, benefit was extended to such Industrial Units which had been allotted Plot/Shed between the two cut-off-dates 15th June, 2001 and 16th August, 2004. The public notice mentions that in view of the above and keeping in mind the demands made by the public at large, the date was extended upto 31st December, 2004. We fail to understand why such changes were subsequently made and there is no specific reason assigned in the affidavit for extending the benefit to such Industrial Units which had been allotted the plots between the two cut-off dates also. However, the brochure which was subsequently published and distributed does not contain such a change.
It is, therefore, clear that NOIDA has been changing the criteria in respect of the reserved category from time to time, even after the expiry of the initial last date, but while extending the dates in the garb of giving the benefit to certain reserved category of villagers and Industrial Units, it has also extended the date for the general category. The counter affidavit filed by NOIDA is delightfully vague about the number of applications received in the reserved categories upto 7th December, 2004, which was initially the last date notified or the subsequent extended dates upto 18th December, 2004 and 31st December, 2004. We, therefore, do not know these figures but what we can gather from the affidavit is that the number of applications which had been received between 8th December, 2004 and 18th December, 2004 is 37,029 while the number of applications which had been received between 18th December, 2004 and 31st December, 2004 is 57,261. By comparing it with the number of applications received under the reserved category between 8th November, 2004 and 31st December, 2004 which is merely 3347, it cannot be doubted that the main beneficiaries were the applicants belonging to the general category. Further we find from the facts and figures stated by NOIDA in their affidavit that whereas only 72,511 applications had been received between the initial dates notified by NOIDA i.e. 8th November, 2004 and 7th December, 2004, about 94,290 applications were received after the extended date. The records further indicate that the successful applicants from amongst those who had submitted the application forms up to 7th December, 2004 are 213 whereas the successful applicants who had submitted the application forms between 8th December, 2004 and 18th December, 2004 and between 19th December, 2004 and 31st December, 2004 are 153 and 259 respectively. Since the total number of plots mentioned in paragraph 17 of the affidavit is 625, we take it that these figures are in respect of the general category applicants only and not in respect of the reserved category applicants for whom another 625 plots had been reserved. Thus 412 successful applicants out of the possible 625 were those who had submitted application forms after 7.12.2004, which comes to about 66%. We are, therefore, of the opinion that the decision taken by the Chairman-cum-Chief Executive Officer, NOIDA, for twice extending the dates firstly for the ''villagers' category and secondly for the ''Industrial Units' was not taken in good faith but was influenced by irrelevant and extraneous considerations and in effect was a pretext to actually extend the dates for the general category applicants as the figures speak so loudly. What is important to be noted also is that the decision taken by the Chairman-cum-Chief Executive Officer, NOIDA, for conferring the benefits upon the reserved categories has not been incorporated in the subsequent brochure.
Scrutiny of application forms prior to draw of lots.
Our order dated 4th August, 2005, also required NOIDA to submit information as to whether the application forms had been scrutinised before draw of lots, as is clear from the queries indicated at Serial Nos. 5, 6, 7 and 8. In the affidavit filed by NOIDA it has been stated that since the number of applicants in the general category are very large, the practice that has been followed is that at the time of accepting the applications by the Bank for the general category applicants, no scrutiny is done but an undertaking is taken that the applicant has carefully read and understood the terms and conditions. It has further been stated in the affidavit that the scrutiny of the application forms is done after draw of lots is made but in the instant case before such an exercise could be undertaken and allotment letters could be issued, the draw itself was cancelled. Thus, according to the averments made in the affidavit, the stage of scrutiny was not reached. It has, however, been clarified that the scrutiny of only the reserved category applicants was done prior to the draw of lots, as the allotment in the reserved category had to be made on the basis of seniority.
In view of the above we passed the order dated 25th August, 2005, that the initial work of scrutiny of the application forms be conducted by NOIDA itself within three weeks under the supervision of some responsible officer to be nominated by the Chairman-cum-Chief Executive Officer, NOIDA. We had directed the counsel for NOIDA to place before us two separate lists containing the names of eligible and ineligible applicants. A supplementary counter affidavit was filed by NOIDA in the Second Petition pointing out that it issued an advertisement inviting offers for data analysis job to be completed within ten days time. Pursuant to the award of the contract on the basis of the aforesaid advertisement, M/s. HCL Technologies started the work on 30th August, 2005 and completed the work on 15th September, 2005. The report was submitted by it on 16th September, 2005. The affidavit further indicates that 2594 applicants were found to be ineligible. However, it was also pointed out that 42,518 applicants had not indicated the PAN Number in the application form.
A copy of the application form which is enclosed along with the brochure clearly indicates at Serial No. 7 that the PAN Number has to be mentioned. In the ''Note' to which we have referred to above, it is clearly provided that the applicants must mention the name of the Bank, Bank Account Number/PAN Number in the application form and that incomplete application forms shall be summarily rejected. In view of the aforesaid conditions such application forms should have been summarily rejected but we have been told that a decision was taken by the Chairman-cum-Chief Executive Officer, NOIDA that such applications should not be rejected.
It is also clear from the averments made in the affidavit that the sole reason for not scrutnising the application forms before draw of lots is that they are so large in number that it is not possible to undertake this exercise. According to us there is no reason why such an exercise could not have been undertaken prior to draw of lots, because if only 625 applicants were to be allotted plots in the general category, then a possibility is there that a large number of successful applicants may ultimately be found to be ineligible and their application forms have to be rejected. In such a situation the entire process of conducting the draw of lots by computerised method becomes meaningless. Thus, the application forms have to be scrutinized before draw of lots, so that such applicants who are ineligible, are not permitted to take part in the draw of lots. NOIDA cannot be permitted to contend that the applications are large in number and so this exercise cannot be done because of paucity of time. The Scheme closed on 31st December, 2004, but the first mock draw was held by NOIDA on 20th May, 2004. Thus there was a period of about more than five months during which NOIDA could have summoned the application forms from the Banks and scrutinized them. This apart, we find that after the direction had been issued by us, the work was completed within 15 days and, therefore, the contention sought to be advanced by NOIDA that the time factor dissuaded them from scrutinizing the application forms before draw of lots, is on the face of it, incorrect. NOIDA must realize that the procedure adopted by it should be fair and aboveboard and all efforts should be made to achieve this. We are, therefore, of the opinion that gross irregularity was committed by NOIDA in holding the draw without even first scrutinizing the application forms.
PROCEDURE ADOPTED FOR SELECTING THE COMPANY FOR COMPUTERISED DRAW OF LOTS:
The notings in the file clearly indicate that a decision had been taken to involve TCS in the draw of lots and in this connection, the communication dated 24.1.2005 had been sent by it in response to which TCS had also submitted a detailed ''Approach Note' dated 2.3.2005. The aforesaid proposal was duly considered by the officials of the NOIDA and a draft of the letter to be sent to TCS was placed before the Chairman and Chief Executive Officer, NOIDA who, however, wanted legal opinion but during this period a communication dated 17.3.2005 was received from the UPDESCO for assigning the work to it. The Deputy Chief Legal Officer made a recommendation for holding of manual draw since there was no guarantee that the employees of the UPDESCO would not submit applications for allotment of plots in the Scheme but it was thought advisable by the Chairman-cum-Chief Executive Officer, NOIDA, to send separate letters to both TCS and UPDESCO for giving an undertaking in the form of an affidavit that such of the officials/employees who had submitted applications for allotment of plots under the Scheme, will not be involved in the holding of the computerised draw. Accordingly, separate letters were written to TCS and UPDESCO. A perusal of the letter dated 5.4.2005 sent to TCS indicates that a reference was made to letter No. 3671 dated 17.3.2005 said to have been sent by TCS and TCS was also required to give the aforesaid undertaking. This letter dated 17.3.2005, bearing No. 3671, was not sent by TCS but was actually sent by UPDESCO. Soon thereafter, NOIDA received a communication dated 7.4.2005 from the Principal Secretary, IT and Electronics, making strong recommendation in favour of UPDESCO. It appears that on receipt of the aforesaid letter, a note dated 8.4.2005 was immediately prepared in which it was mentioned that TCS had not submitted any reply pursuant to the letter dated 5.4.2005, but there is no mention of the fact whether UPDESCO had submitted any reply or not. This clearly gives an impression that at this stage NOIDA was predetermined to replace TCS by UPDESCO because, otherwise it would not have taken the decision on 8.4.2005 to place the matter regarding award of the work to UPDESCO in the Board meeting, merely because TCS had not submitted any reply even though UPDESCO had also not submitted any reply. What is to be noted is that in the communication dated 5.4.2005, the date by which reply was to be submitted was not mentioned and, therefore, NOIDA should have waited for some reasonable time before taking a decision. The record, however, reveals that sufficient time was not given and within three days, a note was put up on 8.4.2005 that TCS had not submitted a reply. The communications dated 5.4.2005 and 6.4.2005 sent by UPDESCO to which we have referred above are not replies to the communication dated 5.4.2005 sent by NOIDA. They are general letters written by UPDESCO merely making a request for the work to be awarded to it. We are, therefore, at a loss to understand as to how such a decision could have been taken on 8.4.2005 to replace such a well-reputed Company by UPDESCO, which had earlier never done any work for NOIDA. On the other hand, TCS, as pointed out above, had to the satisfaction of all including NOIDA conducted the computerised draws earlier in 1998, 2000,2001(1) and 2003(1) without any flaw. In fact, TCS while submitting the proposal for the computerised draw process of residential plots for the earlier year in the 2003(1) Scheme of NOIDA had given details about the Company in the following words:-
"...............TCS, established in 1968, is a premier consultancy firm in South Asia. Employing over 25,000 professionals with impressive academic records from leading universities in India, the USA, and Europe, TCS is today in the forefront of Information Technology (IT). In addition to a network of branches in India, it has over 100 representative offices throughout the world.
A blend of variety of skills and resources has enabled TCS to evolve and implement innovative and state-of-the-art solutions across various business and government sectors. Over the years, TCS has been involved in application development, customization and implementation of software packages, system integration and migration for its various customers spanning 55 countries across five continents. As a consequence, TCS has acquired expertise on a variety of platforms and software products. This experience and expertise, backed by the required infrastructure, will be made available for the proposed project to ensure that high-quality systems are delivered on time.
TCS adopts a systems approach to problems and encourages experimentation, innovation and creativity in finding solutions. TCS aims at total client satisfaction. Its commitment to quality and schedules ensures that the client's needs are met consistently.
TCS has consistently earned the distinction of being the country's top software consultancy organisation for the last several years.
Our SEI CMM Level 5 status, knowledge and expertise of more than 21,000 consultants, world-class products and proven offshore capabilities strengthen our value proposition and make us a global delivery centre of choice - as endorsed by many Global Fortune 500 clients. The total revenue of TCS was Rs. 4,187 crore ($ 880 million) in the year ended March 31, 2002. Revenues have been consistently doubling every two years, for the last six years.
Software and hardware infrastructure at TCS is constantly upgraded to meet the exacting standards that TCS sets for itself. TCS invests heavily on high-end hardware and software, data communication networks, office space for software development, and has an enviable network of 100 offices around the globe. Over 75 date communication networks connect TCS with their clients all around the globe."
What is also to be noted is that merely on the letters written by UPDESCO and the Principal Secretary, IT and Electronics the decision was taken by the Board to allot the work to UPDESCO without even seeking any proposal or ''Approach Note' from UPDESCO about the manner in which it would conduct the draw. We have pointed out this fact because in normal circumstances any person intending to award the execution of work of such magnitude and of such a technical nature would first like to examine the proposal and in fact, this is what NOIDA had been adhering to, not only for the previous 2003(1) Scheme but also for the present Scheme as it required TCS to submit ''Approach Note' for 2004(1) Scheme. UPDESCO was, however, awarded the work even though it had not submitted any proposal in respect of the computerised draw to be held and in a most extraordinary manner a decision was taken by the Chairman-cum-Chief Executive Officer to place the matter before the Board for award of contract to UPDESCO which ultimately assigned the work to UPDESCO.
We feel compelled to make such observations because of the fact that if such a reputed Company like TCS was being replaced by another Company, may be a State Government Undertaking, then too, strong and compelling reasons must exist. We do not find anything from the records, which may even remotely suggest why TCS was replaced. In our opinion, the sending of the letter dated 5.4.2005 to TCS was nothing but an empty formality because NOIDA never waited for a reply from them. In fact, it never wanted to wait for a response from UPDESCO also since it proceeded to assign the work to it without having received any reply. This only shows that it was predetermined to assign the work to UPDESCO. It must also be mentioned that the counsel for TCS had placed before us the letter dated 13.4.2005 submitted by TCS in the office of NOIDA on 15.4.2005, as is clear from the endorsement, by which, in response to the communication dated 5.4.2005 sent by NOIDA, the names of the Associates who would be working in the project were indicated and it was specifically stated that these Associates had not applied in the Scheme. The relevant portion of the letter is reproduced below:-
"Ref: Your letter No. NOIDA/RP/2005/4171 dated 5.4.2005
Our Techno-commercial Proposal for Assistance in Computerised Draw Process for allotment of Plot numbers to successful allottees of Residential Plot Scheme 2004(1)
With reference to your letter mentioned above we would like mention that the following associates will be working on the above project if the project is awarded to us and we hereby confirm that these associates haven't applied in the above Residential Plot Scheme 2004(1)
Relationship with NOIDA Authority for this project:
Mr. Amitabh Nag, Dy Manager (Sales)
Delivery of the Project:
Mr. Ashok Avasthi, Consultant
Ms. Hema Malini, Consultant
Mr. Arup Ghatak, Consultant
Further we are unable to submit the list of all TCS associate who have applied for the above scheme in short time as TCS has more than 40, 000 employees working in multiple countries and are always mobile due to their project commitments."
Thus the information sought for by NOIDA to the effect that the persons employed in the draw of lots by the Company should not have submitted applications for allotment was satisfied except for the fact that the undertaking was not given in the form of an affidavit. However, there is nothing on the record to indicate that prior to 8.4.2005 when the note was made or even 15.4.2005 when the Board had taken the decision, any communication had been sent by UPDESCO to NOIDA giving the names of the persons to be employed for the draw or an undertaking that they had not submitted application forms. This clearly depicts the biased attitude of NOIDA in replacing TCS and giving the work to UPDESCO. We are, therefore, of the opinion that in clear violation of all settled norms and for extraneous considerations the work had been assigned by NOIDA to UPDESCO.
The letter dated 13.4.2005 placed by the learned counsel for TCS necessitated the passing of a direction to NOIDA on 23.9.2005 to submit information as to whether it had received the reply of the letter dated 5.4.2005 from TCS and if so, then to bring the same on record. Sri Anurag Khanna, learned counsel for NOIDA placed before us the letter dated 24.9.2005 sent by the Deputy Chief Executive Officer NOIDA wherein it has been mentioned "As per record available NOIDA has not received any reply from TCS regarding the list of TCS employees who had applied in the aforesaid Scheme." This is an evasive reply and does not satisfy our query which was very specific. We had enquired as to whether any reply to the letter dated 5.4.2005 had been received from TCS but what has been stated in reply is that they had not received any reply regarding the list of TCS employees who had applied in the aforesaid Scheme. This reply, if read together with the reply dated 13.4.2005 submitted by TCS on 15.4.2005, clearly shows that it merely refers to the latter part of the letter dated 13.4.2005 wherein it was stated that TCS was unable to submit the list of all the TCS Associates who had applied for the above Scheme in a short time, as there were more than 40,000/- employees working in multiple countries who are always mobile due to their project commitments. Thus, in the absence of any specific denial, it must be presumed that NOIDA had received the letter dated 13.4.2005 from TCS on 15.4.2005. This is also clear from the endorsement and the seal of NOIDA on the said letter.
The letter dated 20.4.205 sent by NOIDA to UPDESCO after the decision had been taken by the Board only reinforces the observations made by us earlier. It is at this point of time that the NOIDA sought a proposal from the UPDESCO and also the list of the employees who would be involved in the draw of lots. It is, therefore, clear that UPDESCO had, by this time, not given the undertaking as required that the persons involved in the draw had not submitted any application for allotment of plots under the Scheme because by that time even the names of the employees were not known. This fact was also noticed by the officials of the NOIDA in the subsequent note dated 29.4.2005 wherein it is mentioned that the necessary affidavit had not been submitted by UPDESCO. In fact the ''note' dated 16.5.2005 also reveals that since such affidavit was not submitted a reminder letter to be sent to UPDESCO for the said purpose had been placed for signatures. It may be pointed out that even subsequently, letters dated 10.6.2005 and 24.6.2005 were sent by NOIDA to UPDESCO requiring it to submit the affidavit in terms of the requirements indicated in the letter dated 5.4.2005.
The facts indicated above clearly reveal that during the period the proposal sent by TCS was being examined, the Chairman-cum-Chief Executive Officer, NOIDA, in order to make out a ground for ousting TCS began to emphasise on the condition imposed by TCS regarding its employees being not prohibited from submitting application forms for allotment of applications. The only condition that was, however, insisted upon by NOIDA was that the persons involved in the draw process should not have applied for under the Scheme and this condition was satisfied by TCS as is clear from the letter dated 13.4.2005 which was received by NOIDA on 15.4.2005, though, not in the form of an affidavit. Such a condition was, however, not emphasized upon in the case of UPDESCO because the noting dated 8th April 2005 does not mention that UPDESCO had submitted such an undertaking as was required by the letter dated 5th April 2005 and as stated above there is also nothing on the record to indicate that even by 15th April 2005 when the Board had taken a decision in favour of UPDESCO such an undertaking had been submitted. A reasonable inference, therefore, that can be drawn from what has been stated above is that for no rhyme or reason such a reputed Company which had flawlessly conducted four earlier computerised draws for NOIDA was ousted and replaced by UPDESCO which had never done such a work for NOIDA and that it was for extraneous considerations that UPDESCO was assigned the work. What further surprises is that after the work had been allotted to UPDESCO, the proposal was sought for and repeated demands were also made for submitting the affidavit while no correspondence was at all made with TCS after sending the letter dated 5.4.2005 or upon receipt of the letter dated 13.4.2005 from TCS.
We are also surprised that even though such an undertaking was required by the Chairman-cum-Executive Officer, NOIDA from the Agency to be assigned the work but such a restriction was not imposed by him on the employees/officials of NOIDA. From the records produced by the NOIDA, it transpires that Sri Saurabh Mishra who is the son of the Chairman of the Draw Committee Sri M.M. Mishra had also submitted an application bearing no.33165 for allotment of a plot under the Scheme and his name also figures in the list of successful applicants for plot no. F 060 in the most sought after and prestigious Sector No.44. Thus, if the Chairman of the Draw Committee himself through his son could submit an application for being allotted a plot, there appears to be no reason why such a condition was placed upon the employees/officials of TCS.
For all the reasons stated above we are of the clear opinion that the assignment of work to UPDESCO was a mala fide exercise of power by the Chairman-cum-Executive Officer, NOIDA. This sole illegality is grave enough to cancel the draw of lots.
At this stage we would like to comment on the conduct of the Officials of NOIDA in the context of the records produced before us. By the order dated 11th July 2005 we had directed NOIDA to produce the relevant records including the records relating to correspondence with the agencies responsible for draw of lots and the list of successful allotees. On 19th July 2005 certain records were produced by NOIDA including the file titled "Allotment of Residential Plots Scheme 2003(1)" and the papers containing the list of successful allotees. A perusal of the aforesaid file shows that the note sheets from pages 1 to 57 relate to the 2003(1) Scheme and the documents from page no.1 to 275 also relate to 2003(1) Scheme. The file also reveals that the note sheets from page no.59 to 103 relate to the Scheme in dispute namely 2004(1) Scheme and the papers from page no.276 to 421 also relate to the Scheme 2004(1). We are surprised that the file relating to Residential Plot Scheme 2003(1) should contain note sheets and papers relating to the 2004(1) Scheme and our suspicion came true when the counter affidavit was filed by NOIDA in the Second Petition. In this counter affidavit there are note sheets containing page nos.27 to 36 relating to 2004(1) Scheme which have been annexed as Annexure CA-3. Similarly Annexure CA-4 contains note sheets from pages 37 to 39. It is, therefore, clear that even though these note sheets relate to 2004(1) Scheme they were not produced by NOIDA on 19th July 2005 inspite of our specific order dated 11th July 2005. The note sheet pages from 104 to 109 are, however, contained in a separate file titled "Residential Plot Scheme 2004(1). It is only when we were examining the records, after the orders had been reserved on 19.9.2005 that these facts came to light and so on 23.9.2005 we directed the learned counsel appearing for NOIDA to produce the file relating to 2004(1) Scheme and also make available the information mentioned in the order. The file relating to 2004(1) Scheme was produced by the learned counsel only on 27.9.2005. We feel that this file was deliberately kept away from us since it also contained notes and correspondence relating to the two extensions of the last date for submission of forms and it only when we subsequently passed the order on 4.8.2005 that they filed the counter affidavit annexing certain documents from the said file to explain the reason for granting the two extensions. It appears that prior to 4.8.2005 NOIDA wanted to conceal facts about the two extensions. We, therefore, have no hesitation in putting on record that the officials of NOIDA have not been fair to the Court and they deliberately withheld the records inspite of the specific order of the Court. We also do not have any hesitation in stating that the officials of NOIDA have been very evasive in their reply to the specific query contained in our order dated 23.9.2005 about the letter dated 13.4.2005 submitted by TCS on 15.4.2005 in response to the letter dated 5.4.2005 sent by NOIDA. We have considered this aspect earlier but we repeat that they have deliberately withheld the answer to the query and have, therefore, impliedly accepted the receipt of the letter sent by TCS. Such conduct of the officials of NOIDA is reprehensible and deserves to be deprecated.
This is a serious matter and we propose to deal with it with equal seriousness. A public authority must not act in a manner which casts a shadow on its credibility. The manner in which NOIDA has proceeded compels us to ponder whether there are other files also which contain notes/documents because there is at least one letter of TCS which has not been produced by NOIDA inspite of our specific order.
CANCELLATION OF DRAW OF LOTS
It has been urged by Sri Shashi Nandan, learned Senior Counsel on behalf of the petitioner in the First Petition that after the draw of lots, the list of successful applicants was displayed, but subsequently the draw of lots was cancelled without even giving any opportunity of hearing to such applicants. According to him specific rights had accrued in favour of the petitioner and, therefore, the cancellation was void ab-initio due to non-compliance of the principles of natural justice. He further submitted that the said order was passed suo-motu without any investigation and inquiry. Learned counsel appearing for the respondents, however, submitted that after the draw of lots was held on 2nd July 2005, it was cancelled soon thereafter on 4th July 2005 and no rights had accrued in favour of the petitioner since neither the draw had been approved nor any allotment order had been issued in his favour. They further justified the order of cancellation of the draw of lots by placing reliance on the averments made in the counter affidavit and the original records.
We have carefully considered the aforesaid submissions made by the learned counsel for the parties and have examined the materials available on record.
In the counter affidavit it has been stated that in view of the complaints received as well as in the backdrop of certain allegations with regard to the irregularities in the process of draw and to maintain high standards of transparency, the draw was cancelled within 24 hours. It has further been stated in the counter affidavit that on 3rd July 2005, a complaint was received from NOIDA Entrepreneurs Association pointing out that the draw was favouring certain high and influential people and there were also apparent flaws in the software as the database contained different fonts. On the basis of the aforesaid complaint, the Chairman-cum-Executive Officer, NOIDA called a meeting of the Administrative Committee on 4th July 2005 which after taking into account all the aspects was satisfied that there were many technical mistakes and, therefore, in order to maintain transparency it was considered necessary to cancel the draw of lots and a decision was also taken to place the matter before the Board for holding a fresh draw after selection of an agency to conduct the draw. The petitioner has challenged the decision taken on 4th July 2005 to cancel the draw of lots. This decision has been challenged primarily on two grounds namely that in the facts and circumstances of the case there was no occasion to cancel the draw of lots and that even if such an action was to be taken, then too the draw of lots could not have been cancelled without complying with the principles of natural justice.
The primary question that arises for consideration is regarding the scope of judicial interference in matters of administrative decisions. Administrative action is stated to be referable to the broad area of governmental activities in which the repositories of power may exercise executive, quasi-legislative and quasi-judicial functions.
The parameters of the Court's power have been analyzed by the Hon'ble Supreme Court in Commissioner of Income-tax, Bombay & Ors,. Vs. Mahindra & Mahindra Ltd. & Ors., AIR 1984 SC 1182 as under-:
"By now, the parameters of the Court's power of judicial review of administrative or executive action or decision and the grounds on which the Court can interfere with the same are well settled and it would be redundant to recapitulate the whole catena of decisions of this Court commencing from Barium Chemicals, AIR 1967 SC 295 case on the point. Indisputably, it is a settled position that if the action or decision is perverse or is such that no reasonable body of persons, properly informed, could come to, or has been arrived at by the authority misdirecting itself by adopting a wrong approach, or has been influenced by irrelevant or extraneous matters the Court would be justified in interfering with the same. This Court in one of its later decisions in Smt. Shalini Soni Vs. Union of India, AIR 1981 SC 431, has observed thus: "It is an unwritten rule of the law, constitutional and administrative, that whenever a decision-making function is entrusted to the subjective satisfaction of a statutory functionary, there is an implicit obligation to apply his mind to pertinent and proximate matters only, eschewing the irrelevant and the remote". Suffice it to say that the following passage appearing at pages 285-86 in Prof. de Smith's treatise ''Judicial Review of Administrative Action' (4th Edn.) succinctly summarises the several principles formulated by the Courts in that behalf thus: "The authority in which a discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner. In general, a discretion must be exercised only by the authority to which it is committed. That authority must genuinely address itself to the matter before it: it must not act under the dictation of another body or disable itself from exercising a discretion in each individual case. In the purported exercise of its discretion it must not do what it has been forbidden to do, nor must it do what it has not been authorised to do. It must act in good faith, must have regard to all relevant considerations, must not be swayed by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously. Nor where a judgment must be made that certain facts exist can a discretion be validly exercised on the basis of an erroneous assumption about those facts. These several principles can conveniently be grouped in two main categories; failure to exercise a discretion, and excess or abuse of discretionary power. The two classes are not, however, mutually exclusive. Thus, discretion may be improperly fettered because irrelevant considerations have been taken into account; and where an authority hands over its discretion to another body it acts ultra vires. Nor, is it possible to differentiate with precision the grounds of invalidly contained within each category".
In State of U.P. & Ors., Vs. Renusagar Power Co. & Ors,. AIR 1988 SC 1737 it was held that exercise of administrative power will be set aside if there is a manifest error in the exercise of such power or the exercise of the power is manifestly arbitrary.
The famous "Wednesbury Case" Associated Provincial Picture Houses Ltd. Us. Wednesbury Corp. (1947) 2 All ER 680 (CA) is considered to be the landmark in so far as the basic principles relating to judicial review of administrative or statutory direction are concerned. We quote a passage from the judgment of Lord Greene which is as follows:-
"It is true that discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology used in relation to exercise of statutory discretions often use the word ''unreasonable' in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters, which he is bound to consider. He must exclude from his consideration matters, which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting ''unreasonably'. Similarly, there may be something so absurd that no sensible person could even dream that it lay within the powers of the authority...... . In another, it is taking into consideration extraneous matters. It is unreasonable that it might almost be described as being done in bad faith; and in fact, all these things run into one another."
The principles of judicial review of administrative action were further summarized in 1985 by Lord Diplock in Council of Civil Service Unions Vs. Minister for the Civil Service 1984 (3) Al. ER. 935, (commonly known as CCSU case) as illegality, procedural impropriety and irrationality. He said more grounds could in future become available, including the doctrine of proportionality which was a principle followed by certain other members of the European Economic Community. Lord Diplock observed in this case as follows:-
"....... Judicial review has I think, developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call ''illegality', the second ''irrationality' and the third ''procedural impropriety'. That is not to say that further development on a case-by-case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of ''proportionality' which is recognized in the administrative law of several of our fellow members of the European Economic Community."
Lord Diplock explained ''irrationality' as follows:
"By ''irrationality' I mean what can by now be succinctly referred to as ''Wednesbury unreasonableness'. It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it."
In Union of India & Anr,. Vs. G.Ganayutham (1997) 7 SCC 463 the Supreme Court after referring to the aforesaid two cases namely Wednesbury case and CCSU case held:-
"We are of the view that even in our country-in cases not involving fundamental freedoms-the role of our courts/tribunals in administrative law is purely secondary and while applying Wednesbury and CCSU principles to test the validity of executive action or of administrative action taken in exercise of statutory powers, the courts and tribunals in our country can only go into the matter, as a secondary reviewing court to find out if the executive or the administrator in their primary roles have arrived at a reasonable decision on the material before them in the light of Wednesbury and CCSU tests. The choice of the options available is for the authority; the court/tribunal canot substitute its view as to what is reasonable."
In Indian Railway Construction Co. Ltd. Vs. Ajay Kumar AIR 2003 SC 1843 the Hon'ble Supreme Court held :-
"It is trite law that exercise of power, whether legislative or administrative, will be set aside if there is manifest error in the exercise of such power or the exercise of the power is manifestly arbitrary. ............If a power (whether legislative or administrative) is exercised on the basis of facts which do not exist and which are patently erroneous, such exercise of power will stand vitiated."
In People's Union for Civil Liberties & Anr. Vs. Union of India & ors., AIR 2004 SC 456 while dealing with the same issue, the Hon'ble Supreme Court observed as under:-
"The jurisdiction of this Court in such matter is very limited. The Court will not normally exercise its power of judicial review in such matters unless it is found that formation of belief by the statutory authority suffers from mala fide, dishonesty or corrupt practice. The order can be set aside if it is held to be beyond the limits for which the power has been conferred upon the authorities by the Legislature or is based on the grounds extraneous to the legislation and if there are no grounds at all for passing it or if the grounds are such that no one can reasonably arrive at the opinion or satisfaction required thereunder."
In State of N.C.T. of Delhi & Anr. Vs. Sanjeev alias Bittoo (2005) 5 SCC 181 the Hon'ble Supreme Court held as follows:-
"One can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground is ''illegality' the second ''irrationality' and the third ''procedural impropriety'............ The Court will be slow to interfere in such matters relating to administrative functions unless decision is tainted by any vulnerability enumerated above; like illegality, irrationality, and procedural impropriety. Whether action falls within any of the categories has to be established. Mere assertion in that regard would not be sufficient."
The principles applied in judicial review of administrative decisions have also been considered by the Hon'ble Supreme Court in Tata Cellular Vs. Union of India AIR 1996 SC 11 and the same are as follows:-
"(1) The modern trend points to judicial restraint in administrative action.
(2) The Court does not sit as a court of appeal but merely reviews the manner in which the decision was made.
(3) The Court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible.
(4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts.
(5) The Government must have freedom of contract. In other words, a fairplay in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides.
(6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure."
In Monarch Infrastructure (P) Ltd. Vs. Commissioner, Ulhasnagar Municipal Corporation & Ors,. AIR 2000 SC 2272 it was held by the Hon'ble Supreme Court:-
"Broadly stated, the courts would not interfere with the matter of administrative action or changes made therein, unless the Government's action is arbitrary or discriminatory or the policy adopted has no nexus with the object it seeks to achieve or is mala fide."
In Air India Ltd. Vs. Cochin International Airport Ltd. & Ors,. AIR 2000 SC 801 the Hon'ble Supreme Court held as follows:-
"Even when some defect is found in the decision-making process the court must exercise its discretionary power under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the court should intervene."
The decisions referred to by us clearly highlight the parameters of the Court's power of judicial review of administrative action or decision. The jurisdiction of the Courts in such a matter is very limited. The order can be set-aside if it is based on extraneous grounds or there are no grounds at all for passing it or the grounds are such that no one can reasonably arrive at the opinion. The Court does not sit as a Court of Appeal but merely reviews the manner in which the decision was made. The Court will not normally exercise its power of judicial review unless it is found that formation of belief by the statutory authority suffers from mala fide, dishonesty or corrupt practice. In other words the authority must act in good faith. This apart, even when some defect is found in the decision-making process, the Court must exercise its discretionary power under Article 226 of the Constitution with great caution keeping in mind the larger public interest and only when it comes to the conclusion that overwhelming public interest requires interference that the Court should intervene.
Having set the parameters, we shall now examine the correctness or otherwise of the decision taken by the authority in cancelling the draw of lots, but before we proceed to do so we must also find out as to whether there was any scope for manipulation in holding the computerised draw of lots by UPDESCO or NOIDA or both of them in collusion with each other.
The source code of the software used for conduct of the Draw for the residential scheme 2004(1) is developed in Visual Basic 6.0 IDE which is a database/web application development kit. It is a registered trademark product of Microsoft.
The database has been created using Microsoft Access which is a Database Management System (DBMS) package. A database is a complex object for storing structured information, which is organized and stored in a way that allows its quick and efficient retrieval. The information is physically stored into and recalled from the database by a special program known as DBMS which can instantly locate a record in a table containing several million records. This is what has been stated by the famous Author Evangelos Petroutsos in his book "MasteringTM Database Programming with Visual Basic� 6" and the relevant portion is quoted below:-
"A database is a complex object for storing structured information, which is organized and stored in a way that allows its quick and efficient retrieval. We put a lot of effort into designing a database so that we can retrieve the data easily. The information is broken into tables, and each table stores different entities (one table stores customer information, another table stores product information, and so on). We break the information into smaller chunks, so that we can manage it easily (divide and conquer). We can design rules to protect the database against user actions and ask the DBMS to enforce these rules (for example, reject customers without a name). These rules apply to all the items stored in the customers table; the same rules don't apply to the products table and the orders table, of course.............
The information is physically stored into and recalled from the database by a special program known as a database management system (DBMS). DBMSs are among the most complicated applications, and a modern DBMS can instantly locate a record in a table with several million records. While the DBMS maintains all the information in the database, applications can access this information through statements made in Structured Query Language (SQL), a language for specifying high-level operations. These operations are called queries, and there are two types of queries: selection queries, which extract information from the database, and action queries, which update the database. How the DBMS maintains, updates, and retrieves this information is something the application doesn't have to deal with.
Specially, a DBMS provides the following functions:
� A DBMS allows applications to define the structure of a database with SQL statements. The subset of SQL statements that define or edit this structure is called Data Definition Language (DDL). All DBMSs use a visual interface to define the structure of a database with simple point-and-click operations, but these tools translate the actions of the user into the appropriate DDL statements. SQL Server, for example, allows you to create database with a visual tool, the Enterprise Manager, but it also generates the equivalent DDL statements and stores them into a special file, called a script.
� A DBMS allows applications to manipulate the information stored in the database with SQL statements. The subset of SQL statements that manipulate this information is called Data Manipulation Language (DML). The basic data-manipulation actions are the insertion of new records, modification and deletion of existing ones, and record retrieval.
� A DBMS protects the integrity of the database by enforcing certain rules, which are incorporated into the design of the database. You can specify default values, prohibit certain fields from being empty, forbid the deletion of records that are linked to other records, and so on. For example, you can tell the DBMS not to remove a customer if the customer is linked to one or more invoices. If you could remove the customer, that customer's invoices would be "orphaned". In addition, the DBMS is responsible for the security of the database (it protects the database from access by unauthorized users)."
The process of retrieval of data from the tables is known as querying and the statements executed against a database to retrieve selected rows are called queries. These statements are written in SQL (Structured Query Language), a nonprocedural language which performs high level operations. SQL statements are used for manipulating the data which includes data retrieval, insertion of new data to the database, editing or deleting existing data. There are two types of queries - Selection queries which retrieve information from the database but do not modify in it any way, and Action queries which modify the data in the database.
We reproduce the relevant portion from the aforesaid book which is as follows:-
"Every database comes with a tool for executing SQL statements and displaying the results. When the boss wants some information that can't be retrieved by your company's database application, you can write an SQL statement to retrieve the information. In addition, you can execute SQL statements against a database from within your VB application. The rows returned by the statement are intercepted by VB, and you can write the code to display them graphically, process them, or place them on an HTML page and send them to a browser.
Structured Query Language (SQL) is a nonprocedural language. SQL doesn't provide traditional programming structures. Instead, it's a language for specifying the operation you want to perform at an unusually high level. The details of the implementation are left to the DBMS............
SQL statements are categorized into two major categories, which are actually considered separate languages: the statements for manipulating the data, which form the Data Manipulation Language (DML), and the statements for defining database objects, such as tables or their indexes, which form the Data Definition Language (DDL)...............
Selection and Action Queries
The statements of the DML part of the SQL language are also known as queries. There are two types of queries: selection queries and action queries. Selection queries retrieve information from the database and don't modify the database in any way. All selection queries start with the SELECT statement. Action queries modify the data in the database's tables and start with one of three keywords: INSERT, DELETE, or UPDATE."
The source code and database have been developed and maintained by the same company UPDESCO. Hence the data records supplied by NOIDA could be easily manipulated by using simple queries for filtering certain records to satisfy certain conditions. These queries can be easily inserted in the source code and can also be easily removed without affecting the original source code. Queries are setup on character, digit, boolean (true/false), date, time etc. Queries regarding change of font, change of case (Upper/Lower), Null Value, white spaces etc. can be setup very easily. Queries can also be compounded to narrow down the selection to a greater extent and be far more specific. A Null Value means that the actual field is unknown and to understand it we consider it proper to refer to a passage from the aforesaid book:-
"..................how important Null values are to databases. A Null value means that the actual field value is unknown. A numeric field with a zero value is not Null. Likewise, a blank string is not a Null value either. Nulls were introduced to handle incomplete or exceptional data, and they should be handled in a special manner. A field that has not been assigned a value is considered incomplete. If this field is involved in an operation, the result of the operation is considered exceptional, since it's neither zero nor a blank string."
All this can result in deft manipulation of data resulting in selection of records of particular choice. In other words, we are compelled to observe that this computerised draw for the plots was subject to manipulation of diverse nature if the officials of NOIDA and UPDESCO colluded with each other.
We are conscious of our limitations in attempting to encroach upon an area best reserved for experts in this field but even with the knowledge that we possess relating to this field and from what we have been able to gather from the books, we have no manner of doubt that the database that was created does provide scope for inserting queries for filtering certain records to satisfy certain conditions and that such queries could also be easily removed without affecting the original source-code. Thus, no matter, how emphatically it may be argued that the software was designed to be foolproof but in reality it is the feeding of the data in the database and the bona fides of the persons involved in this process, that is the determining factor. No doubt the data was provided by NOIDA, but the source-code and the database were developed by UPDESCO and, as stated above, data records could easily be manipulated by using simple queries. An unauthorised person may, therefore, not be able to do any manipulation, but the Company which has prepared the source-code and the database can easily manipulate the results by using simple queries for filtering certain records to satisfy certain conditions.
In the counter affidavits filed by NOIDA in the aforesaid two writ petitions it has been admitted that there was a flaw in the software and different fonts had been used as a result of which, the draw was cancelled. The petitioner has not filed any rejoinder affidavit in First Petition. This apart, in the affidavit filed by Ashok Kumar who was impleaded as a respondent, it has been clearly stated that the work was allotted to UPDESCO so that it could manipulate the draw of lots by using influence upon a company which was directly under control, being an undertaking of the State Government. We had granted time to NOIDA to file a reply to this application but no reply has been filed.
Thus, in view of the fact that the draw could be manipulated by using simple queries including change of font and the fact that NOIDA itself has admitted that there was a change in font and flaw in the software, we have no reason to doubt that the draw itself was manipulated. However, to determine whether such manipulation was done by UPDESCO at the behest of NOIDA officials or on its own, a detailed investigation is required to be done. We, therefore, propose to pass appropriate orders in this regard for the conduct of such an enquiry.
Reverting back to the issue involved, we find that that in the present case a decision had been taken by the authority concerned on the basis of the material available before it to cancel the draw of lots. It is this decision which has to be tested on the touchstone of the principles enunciated above. The facts reveal that software was required to be developed by UPDESCO for the random selection of the applicants and the allocation of plots. NOIDA was required to provide the validated and certified data for the 1250 plots, 1,66,801 applicants for the general category and 625 successful applicants for the reserved category. The above validated and certified data of the applicants of the general category, reserved category and plots was to be uploaded into the system which would randomly select 625 applicants of general category through the process of random number generation and then the validated data of the reserved category applicants was to be merged with the randomly selected successful candidates of general category. In this way the system would randomly allocate the plots to the selected applicants. The records further show that a lot of hue and cry was raised by the public regarding the draw of lots by this computerised method and even the NOIDA Entrepreneurs Association had submitted a complaint on 3rd July 2005 immediately after the draw of lots mentioning therein that the names of influential persons found place in the list of successful applicants and there were technical flaws in the computerised draw. The Administrative Committee headed by the Chairman-cum-Chief Executive Officer, NOIDA examined the material at length and after having satisfied itself that there were many technical mistakes, considered it best, in the fitness of things and in order to maintain transparency in the matter, to cancel the draw of lots.
The aforesaid facts have to be examined in the light of the other attending circumstances namely that for extraneous considerations, a reputed firm like TCS which had without any problem conducted the earlier four computerised draw was replaced by UPDESCO and that it was possible to do the manipulation if the officials of NOIDA involved in the draw process colluded with the officials of UPDESCO involved in the draw. We do not propose to repeat the reasons all over again for arriving at such a conclusion. The apprehension expressed by us earlier that NOIDA deliberately ousted TCS from the assignment and inducted UPDESCO for ulterior motives has come out to be true because the subsequent facts leading to the cancellation of the draw of lots speak for themselves. We are, therefore, convinced that the process of draw of lots by computerised method stands vitiated by adoption of malpractice and cannot be sustained. The beneficiary of such a systematic manipulation would obviously be the applicants. The list of successful applicants does indicate that it contains names of a number of influential persons holding high positions. The entire process was, therefore, nothing but a fraud played by NOIDA upon the applicants.
The Hon'ble Supreme Court in Smt. Shrisht Dhawan Vs. M/s. Shaw Brothers AIR 1992 SC 1555 observed as follows:-
"Fraud and collusion vitiate even the most solemn proceedings in any civilised system of jurisprudence...............It has been identified as an act of trickery or deceit. In Webster fraud in equity has been defined as an act or omission to act or concealment by which one person obtains an advantage against conscience over another or which equity or public forbids as being prejudicial to another. In Black's Legal Dictionary, fraud is defined as an intentional perversion of truth for the purpose of inducing another in reliance upon it to part some valuable thing belonging to him or surrender a legal right; a false representation of a matter of fact whether by words or by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury. In Oxford, it has been defined as criminal deception, use of false representation to gain unjust advantage; dishonest artifice... ...............
From dictionary meaning or even otherwise fraud arises out of deliberate active role of representator about a fact which he knows to be untrue yet he succeeds in misleading the representee by making him believe it to be true."
In Lazarus Estates Ltd. V. Beasley, (1956) 1 ALL ER 341 the Court of Appeal stated the law thus:
"I cannot accede to this argument for a moment. No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a court, no order of a minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved it vitiates judgments, contracts and all transactions whatsoever;"
In S.P. Chengalvaraya Naidu V. Jagannath (1994) 1 SCC 1 the Supreme Court stated that fraud avoids all judicial acts, ecclesiastical or temporal.
In Union of India & ors. Vs. M. Bhaskaran, 1995 Suppl. (4) SCC 100, the Supreme Court, after placing reliance upon and approving its earlier judgment in the case of District Collector & Chairman, Vizianagaram Social Welfare Residential School Society, Vizianagaram & Anr. Vs. M. Tripura Sundari Devi, (1990) 3 SCC 655, observed as under:-
"If by committing fraud any employment is obtained, the same cannot be permitted to be countenanced by a Court of Law as the employment secured by fraud renders it voidable at the option of the employer."
In United India Insurance Co. Ltd. Vs. Rajendra Singh & ors., AIR 2000 SC 1165, the Supreme Court observed that "Fraud and justice never dwell together" (fraus et jus nunquam cohabitant) and it is a pristine maxim which has never lost its temper over all these centuries.
Sri Shashi Nandan, learned Senior Counsel appearing for the petitioner contended that without any application of mind and without there being any material before it, a decision was taken by NOIDA to cancel the draw of lots and, therefore, it cannot be sustained. In support of his contention he placed reliance upon the decision of the Supreme Court in Onkar Lal Bajaj (supra). The relevant portion of the decision upon which reliance was placed is quoted below:-
"............At the same time, we have no difficulty in accepting the proposition urged on behalf of the Government that if two views are possible and the Government takes one of it, it would not be amenable to judicial review on the ground that other view according to the Court, is a better view. .............The Government has to rise above the nexus of vested interests and nepotism and eschew window dressing. The act of governance has to withstand the test of judiciousness and impartiality and avoid arbitrary or capricious actions. ............In a given situation, depending upon facts and figures, it may be legally permissible to resort to such en masse cancellation where executive finds that prima facie a large number of such selections were tainted and segregation of good and bad would be difficult and time consuming affair. That is, however, not the case........ Without application of mind to any of relevant consideration, a decision was taken to cancel all allotments. The impugned action is clearly against fair play in action. It cannot be held to be reasonable. It is nothing but arbitrary..............."
In the aforesaid case Dealer Selection Boards had advertised 5641 locations out of which merit panels were published for 3760 locations. These panels were prepared after considering thousands of applications and interviewing thousands of applicants and all those selected, except 214, had been issued letter of intent. The Supreme Court observed that though it may be legally permissible to resort to en masse cancellation of allotment letters where a large number of selections were tainted and segregation of good and bad would be difficult and time consuming but on the facts of the case it was found that without application of mind to any of the relevant consideration, the decision had been taken to cancel the allotments. In the present case we find that there was a single computerised draw of lots which has been found to be vitiated by adoption of malpractice and under no circumstances the applicants could have been segregated. Allotment letters had not been issued and in fact, the draw was cancelled within one day before it could be approved and letter of allotment issued. In Onkar Lal Bajaj (supra) the Supreme Court emphasised that the Government has to rise above the nexus of vested interest and nepotism but on the facts of the case it was found that the decision to cancel all the allotments had been taken without application of mind. This is not the position in the present case as it cannot be said that the decision to cancel the draw of lots was taken by NOIDA without application of mind.
It must not be forgotten that for draw of lots, a fair procedure has to be adopted and a fair process is one that gives every applicant an equal opportunity of being selected as a successful applicant and that in such matters a wide latitude is required to be given to the Authority and the Courts should not unduly interfere with the decision taken by the Authority which is in possession of the necessary information and material upon which it takes the action. He who seeks to invalidate or nullify an order must establish the charge of bad faith, an abuse or a misuse by the authority of its powers and it is not necessary that mala fide in the sense of improper motive should be established only by direct evidence, but it must be discernible from the impugned order or must be shown from the established surrounding factors which preceded the order. Even if there is "reasonable suspicion" that the process of draw of lots by computerised method is vitiated by malpractice or corrupt means, the same would suffice for the cancellation and such a decision should not be interfered with by Courts. The surrounding circumstances can be taken into consideration including the necessity to scrap the process for preservation of public faith in the draw of lots. All that is expected from the Authority is that in such a situation it should act in "good faith" and take a "bona fide" decision.
In arriving at such a conclusion, we are benefited by the observations made in the following decisions.
In Krishna Yadav Vs. State of Haryana AIR 1994 SC 2166 the Hon'ble Supreme Court observed as follows:-
"It is highly regrettable that the holders of public offices both big and small have forgotten that the offices entrusted to them are sacred trust. Such offices are meant for use and not abuse. From a Minister to a menial everyone has been dishonest to gain undue advantages. The whole examination and the interview have turned out to be farcical exhibiting base character of those who have been responsible for this sordid episode. It shocks our conscience to come across such a systematic fraud. It is somewhat surprising the High Court should have taken the path of least resistance stating in view of the destruction of records it was helpless. It should have helped itself. Law is not that powerless.
In the above circumstances, what are we to do? The only proper course open to us is to set aside the entire selection. The plea was made that innocent candidates should not be penalised for the misdeeds of others. We are unable to accept this argument. When the entire selection is stinking, conceived in fraud and delivered in deceit, individual innocence has no place as "Fraud unravels everything". To put it in other words, the entire selection is arbitrary. It is that which is faulted and not the individual candidates. Accordingly, we hereby set aside the selection of Taxation Inspectors."
In B. Ramanjini & Ors. Vs. State of Andhra Pradesh & Ors., AIR 2002 SC 2023 the Supreme Court enlightened what approach the Courts should adopt while dealing with matters relating to cancellation of examination and after referring to Bihar School Education Board (supra) observed:-
"The facts revealed above disclose not only that there was scope for mass copying and mass copying did take place in addition to leakage of question papers which was brazenly published in a newspaper and the photocopies of the question papers were available for sale at a price of Rs.2,000/- each. These facts should be alarming enough for any Government to cancel the examinations whatever may be the position in regard to other centres...............
Further, even if it was not a case of mass copying or leakage of question papers or such other circumstance, it is clear in the conduct of the examination, a fair procedure has to be adopted................ In such matters wide latitude should be shown to the Government and the courts should not unduly interfere with the action taken by the Government which is in possession of the necessary information and takes action upon the same. The courts ought no to take the action lightly and interfere with the same particularly when there was some material for the Government to act one way or the other."
In Delhi Development Authority & Anr. Vs. M/s. UEE Electricals Engg. (P) Ltd. & Anr. AIR 2004 SC 2100, the Hon'ble Supreme Court while describing the grounds on which administrative action is subject to control by judicial review observed:-
"Doubtless, he who seeks to invalidate or nullify any act or order must establish the charge of bad faith, an abuse or a misuse by the authority of its powers. While the indirect motive or purpose, or bad faith or personal ill-will is not to be established except on clear proof thereof, it is obviously difficult to establish the state of a man's mind, for that is what the employee has to establish in this case, though this may sometimes be done. The difficulty is not lessened when one has to establish that a person apparently acting on the legitimate exercise of power has, in fact, been acting mala fide in the sense of pursuing an illegitimate aim. It is not law that mala fide in the sense of improper motive should be established only by direct evidence. But it must be discernible from the order impugned or must be shown from the established surrounding factors which preceded the order."
A Division Bench of this Court in the case of Union of India & Ors. Vs. Akchhay Kumar Singh & Ors., 2000 Lab. I.C. 735 considered the scope of interference in such matters and held as follows:-
"In a matter like the one on hand, the competent authority, in our opinion, does not decide a lis between the complainant on one hand and candidates seeking appointment on the other so as to be obliged to hold an enquiry in consonance with the rules of natural justice. Its decision is not to be judged from judicial or even quasi judicial standards and since exercise of power to scrap recruitment is not regulated by objectively determinable factors, even "reasonable suspicion" as to the process of recruitment being vitiated by malpractices or corrupt means would suffice. Surrounding circumstances e.g. the necessity to scrap the recruitment for preservation of public faith in the recruitment process will also do. The competent authority, in our opinion, is not required to hold a formal enquiry in tune with the principles of natural justice and ascertain the truth or otherwise of the complaints as to malpractice in the recruitment process as condition precedent to cancelling the recruitment process. All that is expected of the competent authority in such a situation is that it would act in ''good faith' and take a ''bona fide' decision whether to scrap or not to scrap the recruitment. .....................Notings on the original file produced before us would show that the matter was examined and decision to scrap the recruitment was taken after due deliberation. Such decision, in our opinion is not open to challenge under Article 226 of the Constitution of India on the ground that there was no material to substantiate the allegations of malpractice............... Learned Single Judge, in our opinion, was not right in judging the impugned decision on the touchstone of the standards meant for judging judicial or quasi-judicial decision affecting vested rights of individuals."
In the appeal against the aforesaid decision, the Hon'ble Supreme Court in the case of Union of India & Ors. Vs. Tarun Kumar Singh & Ors., AIR 2001 SC 2196 while upholding the judgment observed as follows:-
".....................in view of the allegation of malpractice, the departmental authorities has held an enquiry into the matter and the result of that enquiry has revealed gross irregularities and illegalities as referred to in the judgment of the Division Bench of Allahabad High Court. Consequently the process of selection which stands vitiated by adoption of large scale malpractice to a public office, cannot be permitted to be sustained by Court of Law."
For all the reasons stated above, the decision to cancel the draw of lots cannot be said to be tainted with mala fide, bad faith or extraneous considerations. We are also not satisfied that there was any illegality, irrationality or procedural impropriety in the passing of the order cancelling the draw of lots.
We also do not find any force in the submission advanced by Sri Shashi Nandan, learned Senior Counsel for the petitioner, that the draw of lots could be cancelled only if the conditions stipulated in clauses 22 and 23 of the brochure were satisfied. The aforesaid clauses relate to cancellation of the allotment in individual cases on account of breach of the terms and conditions or if there was any misrepresentation, suppression of material fact, mis-statement or fraud. In the present case the allotment letters had not been issued and so it is not a case where individual allotment letters were cancelled but a case where the draw of lots was itself cancelled.
This brings us to the next submission of the learned Senior Counsel for the petitioner that principles of natural justice should have been complied with before a decision was taken to cancel the draw of lots by giving some sort of opportunity to the applicants who had been found to be successful. The question that arises for our consideration is whether any rights had matured in favour of the applicants merely because their names were included in the list prepared on the basis of the draw of lots.
Sri Shashi Nandan, learned Senior Counsel for the petitioner submitted that after the draw of lots, the list of successful applicants was notified on the website and allotment order was also issued on the Internet, a copy of which has been annexed as Annexure 3 to the petition. It has, however, strongly been contended on behalf of the respondents that the draw of lots had not attained finality since it had not been approved by the competent authority, apart from the fact that letters of appointment had also not been issued and neither any formal agreement had been entered into between NOIDA and the applicants. According to the respondents, Annexure-3 to the petition on which strong reliance was sought to be placed was not the allotment letter but merely detailed information on the Internet about the successful applicants. They further contended that merely because the applicants were declared successful in the draw of lots, a right did not accrue to them to claim any relief particularly when the draw of lots was cancelled within one day.
It cannot be doubted that the principles of natural justice cannot be put into a strait-jacket formula and that its application will depend upon the fact situation obtaining therein. It cannot be applied in a vacuum without reference to the relevant facts and circumstances of the case. This is what has been held by the Supreme Court in K.L. Tripathi Vs. State Bank of India & Ors. AIR 1984 SC 273; N.K. Prasad Vs. Government of India & Ors. (2004) 6 SCC 299; State of Punjab Vs. Jagir Singh (2004) 8 SCC 129; Karnataka SRTC Vs. S.G. Kotturappa (2005) 3 SCC 409 and in Viveka Nand Sethi Vs. Chairman, J&K Bank Ltd. (2005) 5 SCC 337.
In Union of India Vs. Tulsiram Patel AIR 1985 SC 1416 the Hon'ble Supreme Court held:-
"Though the two rules of natural justice, namely, nemo judex in causa sua and audi alteram partem, have now a definite meaning and connotation in law and their content and implications are well understood and firmly established, they are nonetheless not statutory rules. Each of these rules yields to and changes with the exigencies of different situations. They do not apply in the same manner to situations which are not alike. These rules are not cast in a rigid mould nor can they be put in a legal straitjacket. They are not immutable but flexible."
It is equally well settled that the principles of natural justice must not be stretched too far and in this connection reference may be made to the decisions of the Supreme Court in Sohan Lal Gupta Vs. Asha Devi Gupta (2003) 7 SCC 492; Mardia Chemicals Ltd. Vs. Union of India AIR 2004 SC 2371 and Canara Bank Vs. Debasis Das AIR 2003 SC 2041.
In Hira Nath Mishra & Ors. Vs. The Principal, Rajendra Medical College, Ranchi & Anr. AIR 1973 SC 1260 the Hon'ble Supreme Court held as follows:-
"The High Court was plainly right in holding that principles of natural justice are not inflexible and may differ in different circumstances. This Court has pointed out in Union of India Vs. P.K. Roy, (1968) 2 SCR 186 at page 202 that the doctrine of natural justice cannot be imprisoned within the strait-jacket of a rigid formula and its application depends upon the several factors. ....... Rules of natural justice cannot remain the same applying to all conditions."
Wade ''On Administrative Law' 5th Edition at pages 472-475 has observed that it is not possible to lay down rigid rules as to when the principles of natural justice are to apply and nor as to their scope and extent. Everything depends on the subject-matter. The application of principles of natural justice, resting as it does upon statutory implication, must always be in conformity with the scheme of the Act and with the subject-matter of the case. In the application of the concept of fair play there must be real flexibility. There must also have been some real prejudice to the complainant; there is no such thing as a mere technical infringement of natural justice. The requirements of natural justice must depend on the facts and the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter to be dealt with, and so forth.
The Constitution Bench of the Supreme Court in Managing Director ECIL, Hyderabad Vs. B. Karunakar AIR 1994 SC 1074 made reference to its earlier decisions and observed:-
"In A.K. Kraipak v. Union of India, AIR 1970 SC 150 it was held that the rules of natural justice operate in areas not covered by any law. They do not supplant the law of the land but supplement it. They are not embodied rules and their aim is to secure justice or to prevent miscarriage of justice. If that is their purpose, there is no reason why, they should not be made applicable to administrative proceedings also especially when it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial ones. An unjust decision in an administrative inquiry may have a more far reaching effect than a decision in a quasi-judicial inquiry. It was further observed that the concept of natural justice has undergone a great deal of change in recent years. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the inquiry is held and the constitution of the tribunal or the body of persons appointed for that purpose. Whenever a complaint is made before a Court that some principle of natural justice has been contravened, the Court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case. The rule that inquiry must be held in good faith and without bias and not arbitrarily or unreasonably is now included among the principles of natural justice.
In Chairman, Board of Mining Examination v. Ramjee AIR 1977 SC 965 the Court has observed that natural justice is not an unruly horse, no lurking landmine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference of the administrative realities and other factors of a given case, can be exasperating. The Courts cannot look at law in the abstract or natural justice as a mere artifact. Nor can they fit into a rigid mould the concept of reasonable opportunity. If the totality of circumstances satisfies the Court that the party visited with adverse order has not suffered from denial of reasonable opportunity, the Court will decline to be punctilious or fanatical as if the rules of natural justice were sacred scriptures."
The Hon'ble Supreme Court in Bihar School Education Board Vs. Subhash Chandra Sinha AIR 1970 SC 1269 while considering the cancellation of the entire examination because of use of mass copy considered the scope of the principles of natural justice in such a matter and observed:-
"This is not a case of any particular individual who is being charged with adoption of unfair means but of the conduct of all the examinees or at least a vast majority of them at a particular centre. If it is not a question of charging any one individually with unfair means but to condemn the examination as ineffective for the purpose it was held, must the Board give an opportunity to all the candidates to represent their cases? We think not. It was not necessary for the Board to give an opportunity to the candidates if the examinations as a whole were being cancelled. The Board had not charged any one with unfair means so that he could claim to defend himself. The examination was vitiated by adoption of unfair means on a mass scale. In these circumstances it would be wrong to insist that the Board must hold a detailed inquiry into the matter and examine each individual case to satisfy itself which of the candidates had not adopted unfair means. The examination as a whole had to go............"
After referring to the aforesaid decision, the Supreme Court in Chairman J&K State Board of Education Vs. Fayyaj Ahmad Malik AIR 2000 SC 1039 emphasised that the Board is entrusted with the duty of proper conduct of examinations.
In Biswa Ranjan Sahoo & Ors., Vs. Sushanta Kumar Dinda & Ors,. AIR 1996 SC 2552 the Hon'ble Supreme Court had the occasion to examine whether principles of natural justice were required to be followed in a matter where because of mass scale malpractice in the selection process, the selection was cancelled and in this context it was observed:-
"A perusal thereof would indicate the enormity of mal-practices in the selection process. The question, therefore, is: whether the principle of natural justice is required to be followed by issuing notice to the selected persons and hearing them? It is true, as contended by Mr. Santosh Hegde, learned senior counsel appearing for the petitioners, that in the case of selection of an individual his selection is not found correct in accordance with law, necessarily a notice is required to be issued and opportunity be given. In a case like mass mal-practice as noted by the Tribunal, as extracted hereinbefore, the question emerges: whether the notice was required to be issued to the persons affected and whether they needed to be heard? Nothing would become fruitful by issuance of notice. Fabrication would obviously either be not known or no one would come forward to bear the brunt. Under these circumstances, the Tribunal was right in not issuing notice to the persons who are said to have been selected and given selection and appointment."
In Union of India & Ors,. Vs. O. Chakradhar AIR 2002 SC 1119 the Hon'ble Supreme Court considered the question whether it was necessary to issue individual show cause notices to each selected person when the entire selection was cancelled because of widespread and all pervasive irregularities affecting the result of selection and it was observed:-
"All norms are said to have been violated with impunity at each stage viz. right from the stage of entertaining applications, with answer-sheets while in the custody of Chairman, in holding typing test, in interview and in the end while preparing final result. In such circumstances it may not be possible to pick out or choose any few persons in respect of whom alone the selection could be cancelled and their services in pursuance thereof could be terminated. The illegality and irregularity are so intermixed with the whole process of the selection that it becomes impossible to sort out right from the wrong or vice versa. The result of such a selection cannot be relied or acted upon. It is not a case where a question of misconduct on the part of a candidate is to be gone into but a case where those who conducted the selection have rendered it wholly unacceptable. Guilt of those who have been selected is not the question under consideration but the question is could such selection be acted upon in the matter of public employment? We are, therefore, of the view that it is not one of these cases where it may have been possible to issue any individual notice of misconduct to each selectee and seek his explanation in regard to the large scale widespared and all pervasive illegalities and irregularities committed by those who conducted the selection which may of course possibly be for the benefit of those who have been selected but there may be a few who may have deserved selection otherwise but it is difficult to separate the cases of some of the candidates from the rest even if there may be some."
In the case of S.P. Chengalvaraya Naidu (dead) by L.Rs. V. Jagannath (dead) by L.Rs. & Ors. AIR 1994 SC 853 the Hon'ble Supreme Court refused to interfere on the ground of breach of principles of natural justice by observing:-
"The court of law are meant for imparting justice between the parties. One who comes to the court, must come with clean-hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation".
Following the aforesaid decision of the Supreme Court, this Court in the case of Bharat & Ors. Vs. Nagarpalika, Azamgarh & Ors. (1994)2 UPLBEC 745 observed:-
"Learned counsel for the appellants also submitted that no opportunity of hearing was given to the appellants before passing the impugned orders. We have seriously considered this aspect of the matter too and, in our opinion, where the benefit accrued to the person complaining breach of the principles of natural justice is the result of fraud, unfairness, arbitrariness or misconduct at the source of such benefit, the principles of natural justice cannot be invoked.............. In our opinion, the facts and circumstances of the present case also do not give a different picture. The appellants are in fact beneficiaries of the selection process which has already been held to be unfair and non-existent. In the circumstances, they are not entitled to any relief on the ground of violation of the principles of natural justice which cannot be pressed in service without there being equity on the side of the appellants."
The facts, as they emerge from the records, show that a decision was taken by NOIDA on 4th July, 2005 to cancel the draw of lots held on 2nd July 2005. The authorities had not taken a decision to cancel particular allotments but the draw itself had been cancelled. It is true that the name of the petitioner was included in the list of successful applicants but merely by inclusion of his name in the said list it cannot be said that the petitioner had acquired an indefeasible right to insist that the allotment order should be issued. There is, however, some bone of contention between the parties as to whether the allotment letter had been issued or not. The case set up by the petitioner is that he had been issued the allotment letter through the Internet, but the specific case taken by NOIDA in the counter affidavit is that neither had the list been approved by the Competent Authority and nor had any allotment been issued or formal agreement executed. In our opinion, Annexure-3 to the petition cannot be construed to be an allotment letter. It is merely a detailed information about the successful applicant. Thus the petitioner is not correct in his contention that the allotment order had been issued. We have, therefore, to examine the contention of the petitioner regarding violation of principles of natural justice in the backdrop of the situation that though the list of successful applicants was declared but soon thereafter within one day the draw of lots was cancelled.
As seen above, the principles of natural justice cannot be put into a straitjacket formula and its application depends upon the facts and circumstances of each case. It is for the Court to decide whether the observance of this rule was necessary for a just decision on the facts of the case and unnatural expansion without reference to the administrative realities and other factors of a given case would be injudicious. If the totality of circumstances satisfies the Court that the party visited with adverse order has not suffered because of denial of reasonable opportunity, the Court will decline to be ''punctilious or fanatical as if the rules of natural justice were sacred scriptures'. Where those who have conducted the selection have rendered it wholly unacceptable, the guilt of those who have been selected is not to be considered and what has to be seen is whether such selection can be acted upon. In such cases individual notice to each individual is not required to be issued to seek his explanation with regard to the all pervasive illegalities and irregularities committed by those who have conducted the selection.
In the present case the Authority has not charged any particular applicant of having resorted to any unfair practice but has decided to cancel the draw of lots because of the numerous technical defects which had been pointed out in the draw of lots. In such circumstances it was not necessary for the Authority to give an opportunity to each of the applicants before cancelling the draw of lots and it cannot be said that the petitioner has suffered because of denial of notice. We are, therefore, of the firm opinion that the petitioner and such other applicants whose names appear in the list of successful allottees, are in fact, the beneficiaries of the selection process which has been held to be a farce. In such circumstances they are not entitled to any relief on the ground of violation of the principle of natural justice.
The matter can be examined from another angle and that is whether this Court under Article 226 of the Constitution of India should quash an order on the ground of breach of natural justice if it would result in the restoration of an order passed earlier in favour of the petitioner in violation of the principles of natural justice or is otherwise not in accordance with law.
The Hon'ble Supreme Court in the case of Gadde Venkateswara Rao v. Government of Andhra Pradesh & Ors. AIR 1966 SC 828 refused relief and agreed that the High Court was right in not interfering under Article 226 even if there was violation of natural justice and observed as follows:-
"In those circumstances, was it a case for the High Court to interfere in its discretion and quash the order of the government dated April 18, 1963? If the High Court had quashed the said order, it would have restored an illegal order- it would have given the Health Centre to a village contrary to the valid resolutions passed by the Panchayat Samithi. The High Court, therefore, in our view, rightly refused to exercise as extraordinary discretionary power in the circumstances of the case."
Similar view was taken by the Hon'ble Supreme Court in Mohammad Swalleh & Ors. Vs. Third Addl. District Judge, Meerut & Anr. AIR 1988 SC 94; Maharaja Chintamani Saran Nath Shahdeo Vs. State of Bihar & Ors. (1999) 8 SCC 16; Mallikarjuna Mudhagal Nagappa & Ors., Vs. State of Karnataka & Ors., (2000) 7 SCC 238 and Chandra Singh Vs. State of Rajasthan & Anr. AIR 2003 SC 2889 wherein the Court held that interference was not necessary, if the result of the interference would be the restoration of another order which was not legal.
In the present case we have already held that the draw of lots was vitiated by malpractice and corrupt means. The setting aside of the order cancelling the draw of lots would lead to the inevitable result of restoring the select list and, therefore, on this count also we refrain from exercising our discretion to strike down the order.
We shall now deal with the submission advanced by the learned counsel for the respondents that an applicant whose name appears in the list of successful applicants cannot seek a mandamus for issue of the letter of allotment. A similar controversy relating to service matter was considered by the Supreme Court in the case of Union of India & Ors. Vs. Tarun Kumar Singh (supra) and it was observed that an individual applicant for any particular post does not get a right to be enforced by a mandamus unless and until he is selected in the process of selection and gets the letter of appointment. The observations are quoted below:-
"That apart, an individual applicant for any particular post does not get a right to be enforced by a Mandamus unless and until he is selected in the process of selection and gets the letter of appointment. In the case in hand, much before the so-called list of selection was approved by the Railway Board, the order of cancellation had emanated on the basis of the complaint received from so many quarters. In view of the subsequent findings of the enquiry committee which has gone into the matter, we have no hesitation in coming to the conclusion that the learned single Judge of Allahabad High Court was wholly in error in issuing the direction in question and, therefore, the Division Bench of Allahabad High Court was fully justified in interfering with the said order of learned single judge of Allahabad High Court."
The Hon'ble Supreme Court in the case of Ludhiana Central Co-operative Bank Ltd. Vs. Amrik Singh & Ors., AIR 2003 SC 3103 observed as follows:-
"The conclusion that the functioning of the then Managing Director of the appellant-Bank is neither appreciable nor the so called selections can be given any credence of real/proper selections or can be said to have been made in accordance with law, becomes irresistible. The whole process appear to have been not only perfunctory but really a farce of selection vitiated by award of indiscriminate marks to boost up candidates of choice and unreasonably put down others in utter disregard and derogation of the binding guidelines..............Even otherwise it is well settled by now that a person whose name is said to find place in a select panel has no vested right to get appointed to the post inspite of vacancies existing."
Applying the same principles in the present case, it cannot be said that any right had accrued to the petitioner to seek a direction from this Court for execution of the lease deed as allotment letter had not been issued in his favour.
It must also not be forgotten that the High Court under Article 226 of the Constitution can refuse to exercise its discretionary jurisdiction where the petitioner claims a relief to secure a dishonest advantage or perpetuate an unjust gain.
In Andhra Pradesh State Financial Corporation Vs. M/s. GAR Re-Rolling Mills & Anr., AIR 1994 SC 2151 the Hon'ble Supreme Court observed:-
"A court of equity, when exercising its equitable jurisdiction under Article 226 of the Constitution must so act as to prevent perpetration of a legal fraud and the courts are obliged to do justice by promotion of good faith, as far as it lies within their power. Equity is always known to defend the law from clefty evasions and new subtelities invented to evade law."
In the case of M.P. Mittal Vs. State of Haryana & Ors. AIR 1984 SC, 1888, the Hon'ble Supreme Court held as follows:-
"The appeal arises out of a writ petition, and it is well settled that when a petitioner invokes the jurisdiction of the High Court under Article 226 of the Constitution, it is open to the High Court to consider whether, in the exercise of its undoubted discretionary jurisdiction, it should decline relief to such petitioner if the grant of relief would defeat the interests of justice. The Court always has power to refuse relief where the petitioner seeks to invoke its writ jurisdiction in order to secure a dishonest advantage or perpetuate an unjust gain. This is a case where the High Court was fully justified in refusing relief."
The Hon'ble Supreme Court in State of Maharastra Vs. Prabhu (1994) 2 SCC 481 considered the equity jurisdiction of the High Court under Article 226 of the Constitution and pointed out as follows:-
"Even assuming that the construction placed by the High Court and vehemently defended by the learned counsel for respondent is correct should the High Court have interfered with the order of Government in exercise of its equity jurisdiction................. Where the Government or any authority passes an order which is contrary to rules or law it becomes amenable to correction by the courts in exercise of writ jurisdiction. But one of the principles inherent in it is that the exercise of power should be for the sake of justice. One of the yardstick for it is if the quashing of the order results in greater harm to the society then the court may restrain from exercising the power...........Therefore, even if the order of the Government was vitiated either because it omitted to issue a proper show-cause notice or it could not have proceeded against the respondent for his past activities the High Court should have refused to interfere in exercise of its equity jurisdiction as the facts of the case did not warrant interference.......... It is the responsibility of the High Court as custodian of the Constitution to maintain the social balance by interfering where necessary for sake of justice and refusing to interfere where it is against the social interest and public good."
The same position was reiterated by the Hon'ble Supreme Court in the case of Chandra Singh Vs. State of Rajasthan & Anr. AIR 2003 SC 2889 in which it was observed as follows:-
"Issuance of a writ of Certiorari is a discretionary remedy (Champalal Binani v. CIT, West Bengal, AIR 1970 SC 645). The High Court and consequently this Court while exercising its extra ordinary jurisdiction under Articles 226 or 32 of the Constitution of India may not strike down an illegal order although it would be lawful to do so. In a given case, the High Court or this Court may refuse to extend the benefit of a discretionary relief to the applicant."
The observations made in the aforesaid decisions compel us to refuse relief to the petitioner as we feel that by granting relief we would facilitate the petitioner in securing a dishonest advantage and perpetuate an unjust gain.
Sri Shashi Nandan learned Senior Counsel for the petitioner then submitted that as the list of successful applicants was declared by NOIDA, it was obligatory for it to have taken the consequential steps of executing the lease deed. In support of this contention he pressed into service the doctrine of promissory estoppel and relied upon the decision of the Supreme Court in the case of M/s. Sharma Transport (supra) wherein it has been observed that the basic purpose of the doctrine of estoppel is to prevent a detriment to the party asserting the estoppel by compelling the opposite party to adhere to the assumption upon which the former acted or abstained from acting.
This decision is not applicable to the facts of the present case. In the first instance, in the absence of any allotment letter having been issued it cannot be said that any assurance was given by NOIDA and secondly since the doctrine of promissory estoppel is an equitable doctrine, it must yield where the equity so requires. In the present case we have seen that the draw of lots was vitiated by fraud and manipulation and in such a case public interest would certainly be prejudiced. It would, therefore, be inequitable to bind NOIDA to any assurance, even if it be assumed, that any assurance was given. In this connection we may quote a passage from the decision of the Supreme Court in the case of M/s. Sharma Transport (supra) which in fact, has been relied upon by the learned Senior Counsel for the petitioner and the same is as follows:-
"Since the doctrine of promissory estoppel is an equitable doctrine, it must yield where the equity so requires. If it can be shown by the Government 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 by it, the Court would not raise an equity in favour of the promise and enforce the promise against the Government. The doctrine of promissory estoppel would be displaced in such a case, because of the facts, equity would not require that the Government should be held bound by the promise made by it. But the Govt. must be able to show that in view of the fact as have been transpired public interest would not be prejudiced."
This brings us to the last contention raised by the learned Senior Counsel for the petitioner that the cancellation order of the draw of lots is bad in law since it does not indicate any reason at all. The decision of the Supreme Court in the case of Mohinder Singh Gill (supra) on which strong reliance has been placed was considered and distinguished by the Supreme Court in Maharashtra State Board of Secondary and Higher Secondary Education Vs. K.S. Gandhi & Ors,. JT 1991 (2) SC 296 and Hanuman Prasad & Ors, Vs. Union of India & Anr. JT 1996 (8) SC 510 and in the latter case it was held:-
"It is then contended that since the order does not indicate any reasons, it is bad in law. In support thereof, he placed strong reliance on the decision of the this Court in Mohinder Singh Gill & Anr. v. The Chief Election Commissioner, New Delhi & Ors. (1978) 1 SCC 405, in particular, paragraph 8 of the judgment...........In Maharashtra State Board of Secondary and Higher Secondary Education v. K.S. Gandhi & Ors. JT 1991 (2) SC 296, this Court had held that if the order cancelling the examination came to be passed, the record should indicate the reason, though order may not contain the reasons as indicated in paragraph 21 of the judgment. In that case, it was held that the order did not contain the reasons but the record indicated the same. The administrative order cancelling the examination in which mass copying was alleged, was sustained."
We have sustained the order of cancellation of the draw of lots from the records produced before us and, therefore, in view of the aforesaid decisions this contention of the learned Senior Counsel for the petitioner cannot also be accepted.
Thus, we do not find any merit in any of the contention raised by Sri Shashi Nandan, learned Senior Counsel for the petitioner and the First Petition is, therefore, liable to be dismissed.
We have upheld the decision taken by NOIDA to cancel the draw of lots. The entire process leading to the draw of lots stinks and is a complete farce. It has shocked our conscience to come across such a systematic fraud. It is indeed ironical that the holders of public office in whom the public reposes sacred faith and who are expected to rise to the occasion and respond by adopting a fair procedure have chosen to abuse the position held by them. It is the public that has suffered on account of the oppressive and capricious acts of these public officers.
While obtaining a copy of the application form the applicant was required to deposit a sum of Rs. 750/- per application and if the application form was submitted then the registration money ranging from Rs. 50,000/- for plot up to 112.50 square meters and Rs. 1,40,000/- for a plot measuring 450 per square meters was also required to be deposited. We have mentioned that the number of application forms that were submitted for the general category were 1,66,801 and 3347 for the reserved category. Though even the extended date for submission of application forms expired as far back as on 31st December, 2004, the draw was actually held on 2nd July, 2005 but was ultimately cancelled. A substantial period of time has since expired. As seen above, the total amount of money involved in the allotment of plots would run into crores of rupees. This in itself should have impressed the officials of NOIDA to maintain a greater amount of transparency and fairness in the draw of lots.
This case, however, unravels the gloomy transactions which establish that the respondent-authority has become a sanctuary of fraud and fraudulent transactions and reflects a system which has now been paralyzed by corruption. The effort of this Court is to compel the system to work and recuperative efforts have to be made to regenerate the confidence of the public at large which has been shaken by the dubious steps in the matter of allotment of land. The entire canvas of operations presently under scrutiny is a slushy field which after being traversed discloses startling facts. The unholy watercourse of fraud has to be transformed into a pure stream of hope. Tightening, toughening and cracking down such inglorious attempts to defraud people should be immediately responded to or else it may result in unjust enrichment of the undeserving. The facts of this case demonstrate that NOIDA officials have surpassed all levels of fraud and have lost the ability and capability to assume such a massive responsibility. When the Authorities have resorted to such methods they must be made answerable.
In Lucknow Development Authority Vs. M.K. Gupta, AIR 1994 SC 787 the Hon'ble Supreme Court observed:-
"The jurisdiction and power of the courts to indemnify a citizen for injury suffered due to abuse of power by public authorities is founded as observed by Lord Hailsham in Cassell & Co. Ltd. Vs. Broome 1972 AC 1027 on the principle that, ''an award of exemplary damages can serve a useful purpose in vindicating the strength of law'. An ordinary citizen or a common man is hardly equipped to match the might of the State or its instrumentalities. That is provided by the rule of law........... A public functionary if he acts maliciously or oppressively and the exercise of power results in harassment and agony then it is not an exercise of power but its abuse. No law provides protection against it. He who is responsible for it must suffer it.............Harassment of a common man by public authorities is socially abhorring and legally impermissible. It may harm him personally but the injury to society is far more grievous. Crime and corruption thrive and prosper in the society due to lack of public resistance. Nothing is more damaging than the feeling of helplessness. An ordinary citizen instead of complaining and fighting succumbs to the pressure of undesirable functioning in offices instead of standing against it..............."
In Common Cause, A Registered Society Vs. Union of India & Ors. (1996) 6 SCC 530 the Hon'ble Supreme Court observed:-
"With the change in socio-economic outlook, the public servants are being entrusted with more and more discretionary powers even in the field of distribution of government wealth in various forms. We take it to be omission or commission, and the consequence of that is injury to an individual or loss of public property, an action may be maintained against such public servant. No public servant can say "you may set aside an order on the ground of mala fide but you cannot hold me personally liable". No public servant can arrogate to himself the power to act in a manner which is arbitrary."
In Shiv Sagar Tiwari Vs. Union of India (1996) 6 SCC 558 the Hon'ble Supreme Court while pointing out what corruption is observed:-
"Edmund Burke stated as early as 1977: "Among a people generally corrupt, liberty cannot long exist." In 1778, he observed: "An arbitrary system indeed must always be a corrupt one. There never was a man who thought he had no law but his own will, who did not soon find that he had no end but his own profit."
According to Francis Beaumount (1584-1616) corruption is a tree, whose branches are of an unmeasurable length, they spread everywhere, and the dew that drops from thence, hath infected some chairs and stools of authority.
In the Encyclopaedia of Democracy by Seymour Martin Lipset, Vol.1, p.310, in the Chapter ''Corruption', it is stated that corruption is an abuse of public resources for private gain. It is known that bribes open the way for access to the State for those who are willing to pay and can afford to pay. The situation leaves non-corrupt citizen with the belief that one counts only if one has the right personal contact with those who hold power and also allow persons with money power to get things done to their advantage through backdoor."
In Delhi Development Authority Vs. Skipper Construction & Anr. AIR 1996 SC 715 the Hon'ble Supreme Court observed:-
"...............The Report points out how the several officers of the DDA flouted the orders of the Lt. Governor, acted against the interest of DDA and how they, by their several acts, helped Skipper in achieving its nefarious design to defraud both the DDA and the innocent members of the public............
This could not have happened but for the active connivance and collusion of some of the officers of the DDA. The interests of justice demand that the officers found indulging in such acts be proceeded against and dealt with sternly so that it may serve as a lesson to others. A democratic Government does not mean a lax Government. The rules of procedure and/or principles of natural justice are not meant to enable the guilty to delay and defeat the just retribution. The wheels of justice may appear to grind slowly but it is duty of all of us to ensure that they do grind steadily and grind well and truly. The justice system cannot be allowed to become soft, supine and spineless."
The interest of justice, therefore, demands that the officers found indulging in such acts be proceeded against and dealt with sternly so that it may serve as a lesson to others. It is our bounden duty under the Constitution to ensure that the justice system does not become ''soft, supine and spineless'. We are satisfied from the materials available on record that there is a prima facie case calling for an investigation and looking to the peculiar facts and circumstances of the case, the nature of the inquiry to be done and the mighty people who are alleged to be involved, we are of the opinion that the matter should be referred to investigation by the Central Bureau of Investigation (CBI) at Delhi. The CBI shall conduct the investigation to find out the officials/employees of NOIDA, UPDESCO and the State Government responsible for manipulation in the draw of lots held by NOIDA on 2nd July, 2005 for the aforesaid Scheme and the names of such persons/beneficiaries at whose behest and directions they have resorted to such manipulation. An investigation is also required to be carried out to ascertain whether NOIDA officials had produced the entire records relating to the Scheme before this Court and if not what are the other records so that this Court may suitably punish such officials for committing contempt.
It may be mentioned that in the counter affidavit filed on behalf of NOIDA it has been averred that the State Government by the notification dated 4th July, 2005 appointed a Commission under Section 3 of the Commissions of Enquiry Act to look into and submit the report with regard to the various allegations of irregularities pointed out. It was, therefore, stated that the prayer sought for in the petition cannot be granted. In this connection we feel persuaded to refer to the observations made in the judgment of the Hon'ble Supreme Court in Sanjiv Kumar Vs. State of Haryana & Ors,. (2005) 5 SCC 517 which are:-
"We have given our thoughtful consideration to the respondents' proposal for entrusting the whole matter to a Commission of Inquiry, assisted by a special investigating task force. The flaw with Commissions of Inquiry, as revealed by experience, is that they do not have enough teeth and for their functioning they have to depend on the State's assistance. Commissions of Inquiry remain pending for unreasonable lengths of time. The reports submitted do not bind the State and in spite of transparency and public hearings which the Commissions often hold, at times with fanfare, the reports hardly serve any purpose. By the time the reports are submitted the public memory has already fainted and people are not any more bothered about the results. It is in the discretion of the State to take or not to take any action on the report submitted by the Commission of Inquiry and the experience is that the follow-up action depends more on political considerations rather than for public good.
We feel, Commissions of Inquiry are more suited for inquiring into such matters of public importance where the purpose is to find out the truth so as to learn lessons for the future and devise policies or frame legislation to avoid recurrence of lapses. Such Commissions do not suitably serve the object of punishing the guilty.
In the peculiar facts and circumstances of the case, looking at the nature of the allegations made and the mighty people who are alleged to be involved, we are of the opinion, that the better option of the two is to entrust the matter to investigation by CBI........... They can think of acting fast for the purpose of collecting such vital evidence, oral and documentary, which runs the risk of being obliterated by lapse of time..........."
The Supreme Court clearly observed that in cases where the object is to punish the guilty, a Commission of Inquiry may not serve the purpose since they are more suited for the purpose of finding out the truth so as to learn lessons for the future to avoid recurrence of lapses. Here also the object is to find out the guilty persons responsible for the fraud and manipulation in the draw of lots and this has to be enquired by the CBI. We are confident that the CBI would justify the confidence of the people reposed in them.
The other aspect of the matter for which directions have to be issued is regarding the fresh draw of lots.
By our order dated 25th August, 2005 we had directed the initial work of scrutiny of the application forms for allotment to be done by NOIDA. The same was done and information was conveyed to this Court by means of the supplementary affidavit filed on 19th September, 2005. Three CDs were submitted before the Court containing the list of eligible and ineligible applicants and those who had not mentioned the PAN number in the application forms. The affidavit states that 2594 applicants were found to be ineligible but it was also pointed out that 42518 applicants had not indicated the PAN numbers in the application forms. We were informed that a decision had also been taken by the Chairman-cum-Chief Executive Officer, NOIDA that such application forms which did not contain the PAN numbers should not be rejected. Though we have serious doubts about such application forms being accepted, but since a substantial period of time has lapsed after the submission of the application forms and that the Chairman-cum-Chief Executive Officer, NOIDA has taken a decision not to reject such application forms, we would not be justified in keeping such applicants out of the fray.
The basic question, however, still has to be considered and that is how and by whom should the draw of lots be held. In the circumstances of the case, we are of the clear opinion that the NOIDA officials must not be permitted to be involved in the draw of lots. The draw of lots should be held by a Committee headed by Sri G.B. Patnaik, Principal Secretary, Agriculture State of U.P. with Sri Himanshu Kumar Vice-Chairman, Varanasi Development Authority as the other member. In view of the fact that the controversy that has arisen is because of the computerised draw of lots, we are further of the opinion that the draw of lots should be held manually.
The Court cannot be a mute spectator where fraud and manipulation of such a high magnitude has been practiced. It is, therefore, a fit case where, in order to find out the guilty persons responsible for fraud and manipulation in the draw of lots and in order to restore the confidence of the public in the matter of draw of lots, we consider it necessary to issue the following directions for holding the fresh draw of lots and for investigation by CBI and they are:-
FOR HOLDING FRESH DRAW OF LOTS:-
(1) The draw of lots under the aforesaid ''Residential Plot Scheme 2004(1)' shall be conduct by a Committee headed by Sri G.B. Patnaik, Principal Secretary, Agriculture State of U.P. with Sri Himanshu Kumar Vice-Chairman, Varanasi Development Authority as the other member.
(2) The draw of lots shall be held manually.
(3) The list of eligible applicants and ineligible applicants contained in the CDs has been supplied by NOIDA. We leave it do the discretion of the members of the Committee to take a decision regarding a fresh scrutiny and in case a decision is taken for a fresh scrutiny and some more applicants are found to be ineligible then such applications shall not be considered for draw of lots.
(4) The draw of lots should be held preferably within a period of four weeks from today.
(5) After the draw of lots is held, the Committee shall submit the list of successful applicants to NOIDA for proceeding in accordance with law.
(6) Copies of the CDs and other documents supplied to the Court may be made available to the Committee by NOIDA or CBI. The NOIDA officials shall also render all the documents/information/assistance, as may be required by the Committee.
(7) Sri. S.M.A. Kazmi, learned Additional Advocate General, State of U.P. shall communicate this order to the State Authorities through the Chief Secretary who shall ensure due compliance of the order.
FOR INVESTIGATION BY CBI:-
(1) The CBI shall conduct an investigation to find out the officials/employees of NOIDA, UPDESCO and the State Government responsible for manipulation in the draw of lots held by NOIDA on 2nd July, 2005 for its ''Residential Plot Scheme 2004 (1)' and the names of such persons/beneficiaries at whose behest and direction the manipulation was done. We request the Director, CBI to get the investigation carried out under the supervision of a responsible Senior Officer. The investigation must be initiated at the earliest as otherwise vital evidence, oral and documentary would run the risk of being obliterated. The report may be submitted to this Court within three months.
(2) The CBI shall also conduct an investigation to ascertain whether the NOIDA officials had produced before the Court the entire records relating to the aforesaid Scheme pursuant to the order dated 11th July, 2005 and if not, then the details of such records shall be submitted to this Court. This report may be submitted within six weeks.
(3) The entire records produced before this Court by the learned counsel for NOIDA and the learned counsel for TCS, shall be kept in a sealed cover with the Registrar General of this Court to be handed over to the CBI.
(4) Sri H.S. Hajela, learned counsel for CBI has undertaken to communicate the orders passed by us today to CBI for necessary action.
The efforts made by us are a step towards cleansing the public administration. It is indeed a herculean task but we do hope that this small step would make great strides in the days to come.
We have already held that Writ Petition No. 48287 of 2005 is devoid of all merits and accordingly it has to be dismissed. However, we are inclined to keep this petition pending only for the purposes of issuing appropriate orders after the preliminary report is submitted by the CBI in respect of the documents produced by the NOIDA officials and the report on the basis of the investigation regarding manipulation in the draw of lots. However, Writ Petition No. 50418 of 2005 is disposed of.
Let Writ Petition No. 48287 of 2005 be listed before us on 21.11.2005 for passing further appropriate orders.
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