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Khush Deep Gupta v. New Okhla Industrial Dvelopment Authority & Others - WRIT - C No. 65901 of 2005  RD-AH 4327 (18 October 2005)
Delay and laches
Writ is a discretionary relief
Plead and prove
If no relief can be granted to petitioner- do not decide
Court does not decide academic questions A.F.R.
COURT NO. 34
CIVIL MISC. WRIT PETITION NO. 65901 OF 2005
Khush Deep Gupta ------------- Petitioner
New Okhla Industrial Development
Authority, & Others ------------- Respondents
Hon'ble Dr. B.S. Chauhan, J.
Hon'ble Bharati Sapru, J.
(By Hon'ble Dr. B.S. Chauhan, J.)
This petition has been filed for a direction upon the New Okhla Industrial Development Authority (hereinafter referred to as the ''NOIDA') and the State Government to hold the draw of lots for allotment of residential plots under the "Residential Plots Scheme - 2004 (1)" (hereinafter referred to as the ''Scheme') only after considering the petitioner as eligible for allotment under the Reserved category of "Industrial Applicants".
An advertisement was issued by NOIDA for allotment of residential plots in the aforesaid Scheme. The petitioner on the basis of the said advertisement submitted an application under the reserved category "Industrial Applicants" for allotment of a plot measuring 450 Sq. Mtrs. On 2nd May, 2005 the list of 625 successful applicants under the Reserved category was declared by NOIDA but the name of the petitioner did not figure in the said list as his unit was non-functional. The draw which was initially scheduled for 3rd May, 2005 was ultimately held on 2nd July, 2005, but soon thereafter it was cancelled on 4th July 2005 and a fresh draw of lots was ordered to be held. The contention of the petitioner is that his application should have been considered as his unit was functional. He has, therefore, sought the relief for including his name in the list of successful applicants belonging to the reserved category "Industrial Applicants".
In order to appreciate the contention advanced before us by the learned counsel for the petitioner, the relevant terms and conditions for allotment contained in the Scheme have to be examined and they are as follows:-
"(A) General Applicants
50% Plots in each plot category
(B) Prescribed Reserved
50% Plots in each plot category as per details below
Percentage of reserved categories are as under:-
Category II & III
Commercial & institutional applicants
NOIDA Employee Applicants
(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.
II. Special eligibility conditions applicable to specific categories:
(A) Industrial unit:
(a) Bona fide Industrial units fulfilling the following conditions will be eligible.
(i) The Unit has been allotted/transferred an industrial plot/shed by NOIDA/NEPZ in its name on or before 15th June, 2001 and after 16.8.2004 the allotment of Industrial Plot should have been done and has been declared functional on or before closing date of the scheme. The form of functional certificate should be enclosed duly filled in which will be got verified from Industries Department by Noida itself. (Emphasis added)
Note: Plot category-wise selection of successful applicants for the industrial category will be done on the basis of seniority which will be determined on the basis of date of production as indicated in the functional letter issued by industrial development departments of NOIDA or the date on which the Director/Proprietor/Partner has been taken on record, whichever is letter. In case the functional letter does not indicate the date of production, the date of functional letter would be deemed as the date of production. Where the dates are same, seniority will be decide through draw of lots. Specific plot numbers will be allotted through draw of lots with General and Reserved category applicants in the respective plot category. The eligibility/seniority of the applicants will be decided by industrial department of NOIDA which shall be binding on the applicants.
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.
A perusal of the Scheme indicates that the total number of plots available for allotment was 1250 out of which 625 plots were for general category applicants and an equal number for reserved category applicants. In the reserved category 17.5% plots were reserved for ''Industrial Applicants' and the special eligibility conditions applicable to Industrial unit clearly provided that the industry should have been declared functional on or before the closing date of the Scheme i.e. 31st December 2004 and that the selection of successful applicants would be made on the basis of seniority. It was further required that the form of functional certificate should be enclosed along with the application form which was to be verified by the Industries Department of NOIDA itself. It must also be mentioned that the Scheme provided that the 625 successful applicants for the reserved category in the first stage were to be identified in the manner provided for in the Scheme and likewise 625 applicants for the general category in the first stage were to be identified by the draw of lots. After the successful applicants had been identified for the general category and reserved category in the first stage, specific plot numbers had to be allotted by draw of lots in the second stage.
Learned counsel for the petitioner submitted that the petitioner had purchased a piece of land measuring 114 Sq. Mtrs. in the year 1983 in Sector 9, NOIDA for Industrial purpose and after purchasing the said industrial plot, the petitioner completed the construction and started commercial production in the year 1984 itself. "No dues" certificate was also issued by NOIDA on 27th April 1986. On the basis of the advertisement issued by NOIDA, the petitioner submitted an application for allotment of a plot measuring 450 Sq. Mtrs. but his name was not included in the list of successful applicants declared on 2nd May 2005 containing the names of the reserved category applicants as his unit was found to be non-functional. The petitioner then submitted a letter dated 3rd May 1995 to the General Manager (Industries), NOIDA for issuing the unit functional certificate. This letter was followed by reminder dated 6th May 2005. The petitioner has also brought on record the communication dated 19th May 2005 issued by the Special Officer, NOIDA declaring the petitioner's unit as functional w.e.f. 19th November 1985. Learned counsel, therefore, contended that the name of the petitioner should have been included in the list of 625 successful applicants belonging to the reserved category.
Sri Anurag Khanna, learned counsel appearing for NOIDA, however, submitted that the petitioner knew on 2nd May 2005 that his name was not included in the list of 625 successful applicants for the reserved category and so his application would not be considered for the final draw of lots to be held subsequently but still the petitioner kept quiet for a long period of time and did not approach this Court before the holding of the draw of lots. The petition was, therefore, liable to be dismissed on the ground of laches. He further submitted that even though the said draw of lots held on 2nd July 2005 was cancelled on 4th July 2005, but a number of writ petitions were filed in this Court for quashing the cancellation order dated 4th July 2005 and this Court in its judgment and order dated 4th October 2005 passed in writ petition no.48287 of 2005 connected with writ petition no.50418 of 2005 issued amongst others, a specific direction for holding a fresh draw of lots within four weeks by a committee constituted for this purpose, therefore, in such circumstances the Court should decline to entertain the petition as any interference at this stage would only complicate the issue. Sri Khanna further submitted that the petitioner has not impleaded any of the successful applicants belonging to his reserved category and in the absence of any such applicants having been arrayed as respondent in this petition, no relief can be granted to the petitioner.
We have carefully considered the rival submissions advanced by the learned counsel for the parties and perused the material available on record.
A perusal of eligibility requirement for the prescribed reserved category as contained in the Scheme and to which we have referred to above clearly shows that not only the Industrial Unit should have been declared functional before the closing date of the Scheme but the functional certificate was also required to be enclosed along with the application form. Petitioner has filed the application form (Annex-6) submitted by him which clearly shows that he had not enclosed the functional certificate along with the said application form and even otherwise admittedly no such functional certificate was issued in his favour by that date as it was only by the communication dated 3rd May 2005 that the petitioner made a request for issuing of the functional certificate. As noticed above, the list of successful applicants on the basis of seniority under the reserved category whose names were to be included in the final draw of lots was declared on 2nd May 2005. It was, therefore, imperative for the petitioner to have enclosed the functional certificate along with the application form so that his seniority could be determined. The petitioner, however, did not do so and made an application only on 3.5.2005 for issue of the functional certificate. In such circumstances the communication dated 19th May 2005 issued after the declaration of the list cannot help the petitioner. Thus the action of the respondent Authority in rejecting the form of the petitioner under the reserved category cannot be said to illegal or arbitrary.
The name of the petitioner did not figure in the list of successful applicants identified in the first stage for the reserved category on 2nd May 2005. Therefore, there was no question of his name appearing in the final draw held on 2nd July 2005 since only those 625 applicants under the reserved category along with the 625 applicants of the general category identified in the first stage were be considered for the final draw of lots. The petitioner did not challenge the first stage list of successful applicants for the reserved category by filing the petition before the holding of the final draw of lots on 2nd July 2005. Even thereafter he kept quiet for a substantially long period and it is only now when the draw of lots is to held within four weeks from the date of the above referred to judgment i.e. 4th October 2005 that he has filed this petition. He cannot now be permitted to challenge the same merely because the draw of lots was cancelled on 4th July 2005 and a fresh draw of lots is required to be held. Any interference at this stage at the behest of a person who has slept over his rights for such a long period is not warranted at all and we would not be justified in exercising our discretion in entertaining this petition as it is bound to upset the entire exercise relating to the holding of the draw of lots.
The only explanation given by the petitioner for the delay in approaching this Court is contained in paragraph no.17 of the petition which is as follows:-
"That after the said draw of lots the Petitioner herein found that his name was not included in the draw of lots and the plot was allotted to some other persons who were junior to the Petitioner in the seniority. The Petitioner wanted to immediately take steps, however within next few days the said draw of lots was also cancelled and it was widely declared in the press that fresh draw of lots shall be held after initiating the process again."
A perusal of the averments made in the aforesaid paragraph indicates that it was only after the draw of lots on 2nd July 2005 that the petitioner found that his name was not included in the draw of lots and the petitioner wanted to immediately take steps but the draw of lots was cancelled within the next few days. This is an absolutely false statement in as much as the petitioner was aware even on 2nd May 2005 that the list of 625 successful applicants belonging to the reserved category who had been identified in the first stage on the basis of seniority did not contain his name because he had filed an application on 3rd May 2005 protesting against the non-consideration of his name. This apart, even after the cancellation of the draw of lots on 4.7.2005, the petitioner has waited for over three months and there is no explanation for the same.
The issue of delay in filing the writ petition was considered by the Hon'ble Apex Court in Smt. Sudama Devi Vs. Commissioner & ors., (1983) 2 SCC 1, wherein the Apex Court has observed as under:-
"There is no period of limitation prescribed by any law for filing the writ petition under Article 226 of the Constitution. It is, in fact, doubtful whether any such period of limitation can be prescribed by law. In any event, one thing is clear and beyond doubt that no such period of limitation can be laid down either under the rules made by the High Court or by practice. For every case, it would have to be decided on the facts and circumstances whether the petitioner is guilty of laches and that would have to be done without taking into account any specific period as period of limitation. There may be cases where even short delay may be fatal while there may be cases where even a long delay may not be evidence of laches on the part of the petitioner."
Similarly, in State of U.P. Vs. Raj Bahadur Singh & Anr., (1998) 8 SCC 685; the Hon'ble Apex Court held that "there is no time limit for filing the writ petition. All that the Court has to see is whether the laches on the part of the petitioner are such as to disentitle him to the relief claimed by him."
In Northern Indian Glass Industries Vs. Jaswant Singh & ors., AIR 2003 SC 234, the Hon'ble Apex Court held that the High Court cannot ignore the delay and laches in approaching the writ court and there must be satisfactory explanation by the petitioner as how he could not come to the Court well in time. A similar view has been reiterated by the Hon'ble Supreme Court in Printers (Mysore) Ltd. Vs. M.A. Rasheed & Anr. (2004) 4 SCC 460 the Hon'ble Supreme Court held that the High Court should have dismissed the writ petition on the ground of delay and laches.
We are, therefore, of the opinion that the petitioner has not been able to explain the delay in filing this petition because in our opinion it was for the petitioner to have immediately challenged the list declared on 2nd May 2005 if he was actually aggrieved. Thus, not only has the petitioner failed to explain the delay in filing this petition but also in his anxiety deliberately made false averments. This in itself is grave enough to disentitle the petitioner from seeking any relief from the Court. In view of the above, we have no hesitation in holding that the petition suffers from delay and laches and petitioner has not approached the Court with clean hands.
It must also not be forgotten that this is a case where the conduct of the petitioner also disentitles him to seek any discretionary relief from this Court under Article 226 of the Constitution of India. The petitioner was an applicant under the reserved category meant for "Industrial Applicant". The final draw of lots was held on 2nd July 2005 but there was no question of his being considered in the final draw since his name did not figure in the list of successful applicants identified in the first stage for the reserved category on 2nd May 2005. The petitioner did not challenge this list and permitted the draw of lots to be held on 2nd July 2005 and now when everything has been finalised and the draw of lots is to be held by a mechanical process under the directions of this Court given in the above referred to judgment and order dated 4th October 2005 in Writ Petition No.48287 of 2005,the petitioner has approached this Court for seeking certain directions which would obviously reopen the entire issue. It has, therefore, to be seen whether in spite of such conduct of the petitioner, we should exercise over discretion in this matter.
In M.P. Mittal Vs. State of Haryana & Ors. AIR 1984 SC, 1888, the Hon'ble Supreme Court held that High Court under Article 226 of the Constitution, in the exercise of its undoubted discretionary jurisdiction, should decline relief to such petitioner if the grant of relief would defeat the interests of justice.
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:-
".........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 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 Vs. 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."
Having examined the matter in the light of the proposition of law contained in the aforesaid decisions, we are of the opinion that in such a situation the conduct of the petitioner clearly disentitles him from raising any grievance at this stage and, therefore, we would not be justified in exercising our discretion under Article 226 of the Constitution at the behest of the petitioner.
We also find that the petitioner has also not impleaded any of the successful applicants identified by NOIDA in the first stage for the "Industrial Applicants" reserved category which was required. (Vide Prabodh Verma Vs. State of Uttar Pradesh, AIR 1985 SC 167; Arun Tewari Vs. Zila Mansavi Shikshak Sangh AIR 1998 SC 331; Ishwar Singh v. Kuldip Singh, 1995 Supp (1) SCC 179 and J.Jose Dhanapaul v. S. Thomas, (1996) 3 SCC 587).
In view of the proposition of law laid down in the aforementioned case, the present petition is not maintainable in the absence of any of the successful reserved category applicant belonging to "Industrial Applicants" identified in the first stage having been impleaded. If any, relief is granted to the petitioner, one of the successful applicant has necessarily to be displaced.
One more aspect which needs to be emphasised is that even if the petitioner's unit is deemed to be functional, then too the percentage reserved for Industrial Unit was only 17.5%. The applicants under this category were required to be identified on the basis of seniority. The petitioner has not stated in the entire petition that if his form was considered then he would come within the aforesaid percentage on the basis of seniority. Thus also, no relief can be granted to the petitioner as it was for him to plead and prove his case.
It is settled proposition of law that a party has to plead the case and produce/adduce sufficient evidence to substantiate his submissions made in the petition and in case the pleadings are not complete, the Court is under no obligation to entertain the pleas. In Bharat Singh & Ors. Vs. State of Haryana & Ors., AIR 1988 SC 2181, the Hon'ble Supreme Court has observed as under:-
"In our opinion, when a point, which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or the counter-affidavit, as the case may be, the Court will not entertain the point. There is a distinction between a hearing under the Code of Civil Procedure and a writ petition or a counter-affidavit. While in a pleading, i.e. a plaint or written statement, the facts and not the evidence are required to be pleaded. In a writ petition or in the counter affidavit, not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it."
Similar view has been reiterated in M/s. Larsen & Toubro Ltd. & Ors. Vs. State of Gujarat & Ors., AIR 1998 SC 1608; National Building Construction Corporation Vs. S. Raghunathan & Ors., AIR 1998 SC 2779; Ram Narain Arora Vs. Asha Rani & Ors., (1999) 1 SCC 141; Smt Chitra Kumari Vs. Union of India & Ors., AIR 2001 SC 1237; and State of U.P. Vs. Chandra Prakash Pandey, AIR 2001 SC 1298.
In M/s. Atul Castings Ltd. Vs. Bawa Gurvachan Singh, AIR 2001 SC 1684, the Hon'ble Apex Court observed as under:-
"The findings in the absence of necessary pleadings and supporting evidence cannot be sustained in law."
Similar view has been reiterated in Vithal N. Shetti & Anr. Vs. Prakash N. Rudrakar & Ors., (2003) 1 SCC 18.
The facts as brought out on record, therefore, do not disclose that any legal injury has been caused to the petitioner because there is no reason to believe that his name would have been included in the list of successful applicants under the specific reserved category to which he belonged even if his application form was considered. In coming to this conclusion we are fortified by the observations made by the Hon'ble Supreme Court in the case of Utkal University vs. Dr. Nrusingha Charan Sarangi & Ors. AIR 1999 SC 943 which are as follows:-
"What is, however, important is that the record does not show whether the Selection Committee, in fact, gave or did not give credit for this qualification. What is more important, there is no reason to hold that if any additional marks were to be given to the first respondent for this qualification, he would be selected. His name does not figure in the list of candidates selected by the Selection Committee.............
It is in this context that the submission of the University regarding the locus standi of the first respondent to file the writ petition must also be considered. The University has rightly pointed out that the original writ petition does not disclose any legal injury to the original petitioner/present first respondent, because there is no reason to come to a conclusion that he would have been selected even if all his contentions in the writ petition were accepted. The University has relied upon the decision of this Court in Jashbhai Motibhai Desai v. Roshan Kumar, Haji Bashir Ahmed, AIR 1976 SC 578 for the purpose of pointing out that the first respondent stands more in the position of a meddlesome interloper than a person aggrieved. There is much force in this contention also."
Thus, the petitioner stands "more in the position of a meddlesome interloper than a person aggrieved."
It is settled proposition of law that even if the order impugned is quashed or Rule is struck down but the petitioner does not get any benefit from the said quashing, then the writ court should not interfere at his behest. (Vide Dr. Rai S. Bahadur Vs. Governing Body of the Nalanda College Bihar Sharif & Ors., AIR 1962 SC 1210; Kumari Chitra Ghosh Vs. Union of India & Ors., AIR 1970 SC 35; Dr. N.C. Singhal Vs. Union of India & Ors., 1980 SC 1255 and Khalid Hussain Vs. Commissioner & Secretary to the Government of Tamil Nadu Health Department & Ors., AIR 1987 SC 2074).
Further the Courts are meant to determine the real and living issues and not the academic questions as it would be a futile exercise. (Vide Loknath Padhan Vs. Birendra Kumar Sahu, AIR 1974 SC 505; Sanjeev Coke Mfg Co. Vs. M/s.Bharat Coking Coal Ltd & Anr, AIR 1983 SC 239; R.S. Nayak Vs. A.R. Antulay, AIR 1984 SC 684; Harsharan Verma Vs. Charan Singh & Ors (1985) 1 SCC 162; Rajasthan Adult Education Association & Anr Vs. Ashoka Bhatacharya (KM) & Anr. AIR 1998 SC 336; State of Rajasthan & Ors. Vs. Vatan Medical & General Store & Ors, AIR 2001 SC 1937; Basant Kumar Vs. State of Rajasthan & Ors, (2001) 7 SCC 201; Arnit Das Vs. State of Bihar, (2001) 7 SCC 657; and M.N. Binjolkar Vs. State of Madhya Pradesh & Ors., (2005) 6 SCC 224).
In view of the above, it is apparent that petitioner has got only an industrial plot measuring 114 sq. mts. and applied for 450 sq. mts residential plot. Petitioner did not possess the functional certificate upto the date of his elimination from the list of eligible applicants. Filing the copy of the said functional certificate was necessary along with the application form. Petitioner applied for issue of the said certificate only after his elimination at the first stage. Thus, petitioner was not eligible to apply for allotment of residential plot.
Petitioner did not approach the Court after rejection of his application on 2.5.2005 but waited for complete five months, and approached this Court only after disposal of a very large number of petitions on the issue. It cannot be believed that petitioner was not aware of the pendency of those cases as it should have been the talk of the town. Petition not only suffers from delay and laches but also liable to be dismissed for non-joinder of necessary parties in view of the principle enshrined in second proviso to Order 1, Rule 9 CPC. At least one or two eligible applicants should have been impleaded in representative capacity. Petitioner miserably failed to plead and substantiate the pleadings.
Thus, for all the reasons stated above, the writ petition is liable to be dismissed and is accordingly dismissed. There shall be no order as to costs.
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