High Court of Punjab and HaryanaCWP/16027/2024dismissed

Amit Kishan Madan v. Haryana Shehri Vikas Pradhikaran And Others

2024-07-29Mr. Justice Arun Palli,Mr. Justice Vikram Aggarwal41 pages

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*)2 Column No.5 (Brochure) Online payment of Earnest Money Deposit (EMD) All the intending bidders are required to deposit earnest money equivalent to 05% (Five percent) of the base price for the property (for which he/she is intending to participate) through Debit Card/NEFT/RTGS/Net Banking /by generating Challan for e-auction. In case the bidder intends to bid for more than one property in the same group or different properties in the different groups then separate EMD (05%) of base price shall be required to be deposited. The e-payment

of EMD shall be made in the stipulated time period specified under Clause 'C'

relating to "HOW TO PARTICIPATE" of this brochure.

Clause 11 (Policy dated 20.05.2021) The intending bidder shall be required to deposit an earnest money equivalent to 5% (Five percent) of cost at base price of each property separately (for which the bidder intends to participate in e-auction) before participating in the e-Auction. Thus, anyone intending to bid for more than one property shall be required to deposit the EMD for multiple properties he/she wishes to bid before participating in e-Auction. In other words, EMD will have to be deposited separately for each property for which an intending bidder wants to participate.

Provided that no interest shall be payable on the EMD for the period from the date of its deposit till a decision is taken by the competent authority/committee w.r.t.

acceptance or rejection of bid.

Clause 20 After the successful registration, the intending bidder has to deposit the earnest money equivalent to 5% (Five percent) of the base price of a property (for which the bidder intends to participate in the auction) by using his user ID and password. The amount of EMD can be deposited by generating Challan through RTGS/NEFT/Debit Card/Net Banking before 48 hours from scheduled date & time of e-auction. (part of line deleted) Clause 29 The highest bidder shall be required to remit an amount equivalent to 10% of his/her quoted bid amount (including EMD already deposited) in the following time period:-

50 lacs

8 50 lacs to crore

crore to crore

crores !

The highest bidder has to deposit the amount by way of online payment through Net Banking etc. or through RTGS/NEFT by generation of challan on the e-auction portal. The link will be visible only to the Highest Bidder i.e. H, of that property. In case of the highest bidder fails to deposit the said amount as specified above, his bid shall stand automatically rejected and the EMD deposited by him for participation in the e-auction shall stand forfeited in favour of HSVP. No further communication in this regard shall be issued separately. (The word 'successful bidder' appears in first, fourth and seventh line has been replaced with 'highest bidder'. 30.

After acceptance of the bid and verification of requisite documents, the successful bidder will be issued Letter of intent (LOI) by the Estate Officer concerned. The LOI will be sent through registered post and through email at the registered address and email id of the successful bidder. All the payment schedule of the bid amount is linked with the date of dispatch of LOI through email. HSVP will not be responsible if LOI is not received by the Successful bidder due to change in his correspondence address or email id. It will be the interest of such bidder to get his correspondence address or email id, if any updated from time to time. The allottee will be further required to deposit another 15% of the quoted bid amount within 30 days from the date of dispatch of LOI. In case of failure to deposit the said amount within the above specified period, the LOI shall stand automatically withdrawn without any further notice in this behalf and the 10% amount deposited shall stand forfeited to the HSVP against which successful bidder shall have no claim for damages.

Thereafter, remaining 75% of the bid amount shall have to be paid within a period of 120days from the

date of dispatch of LOI without interest, failing which the LOI shall stand withdrawn without any further notice in this behalf and the 25% amount deposited shall stand forfeited to the HSVP against which successful bidder shall have no claim for damages. 25.

The aforesaid policy was revised by way of a revised e-auction Policy dated 20.07.2022 which had identical provisions with a difference that the concept of base price was done away with and only a reserve price was kept and EMD of 5% was to be made of the reserve price. Remaining conditions were the same as in the Policy dated 20.05.2021 especially as regards the clauses which have been referred to in the preceding paragraphs and with some modification in the balance 75% payment which would not be relevant for the purpose of the decision of the instant writ petition. The provisions are, therefore, not required to be reproduced for the sake of brevity.

26.

Coming to the public notice (Annexure P-1) which is stated to have been issued on 12.06.2024, the details of the site, the reserve price and the EMD amount were mentioned. There was a note that for detailed terms and conditions, the e-auction portal of HSVP be checked. The terms and conditions on the portal provided that the e-auction of the disputed site would be conducted adopting the 'Swiss challenge' with 'right of first refusal'. It would be essential to reproduce the said terms and conditions; "The terms and conditions for E-auction to be held on 28.06.2024 of Commercial Complex (composite) site (measuring 1.32 acres at Sector 43, Urban Estate, GurugramII) are as below:- 1.

The e-Auction of the said composite site will be

conducted as per the e-Auction policy dated 20.05.2021 adopting 'Swiss Challenge' with 'Right of first refusal'.

On the completion of auction, if there is a higher bid than the Swiss Challenger's bid of Reserved Price, the Swiss challenger will be asked by HSVP within one (1) working day to match the highest bid of H1 by increment of 2% on the reserve price i.e. H1 + 2%, out of which 1% will go to the H1 bidder and 1% will be retained by HSVP.

The Swiss Challenger, if so accepts to match the bid will have to convey the same within one (1) working day and further deposit the balance amount to HSVP within 120 days as per e-auction policy dated 20.05.2021.

In case the Swiss Challenger does not accept the match the highest bid, the highest successful bidder's will be accepted and the successful bidder (H1) will have to pay the balance 75% payable within 120 days as per e-auction policy dated 20.05.2021.

In case no bidder competes in the said Auction for two successive auctions, the said site shall be allotted the Swiss challenger at the reserve price plus 2%. In such case also, balance payment will be made in 120 days as per E-Auction policy dated 20.05.2021 and additional one month of period is allowed, if payment is made along with interest."

27.

The second public notice which is stated to have been published on 08.07.2024 and is on record as Annexure P-9, is verbatim and, therefore, does not require a detailed reference. It has emerged from the pleadings of the parties that the second public notice was issued because no bidder turned

9 up in pursuance to the first public notice.

28.

Having made a reference to the relevant provisions, we now proceed to examine the law on the subject. Challenge to policy decisions, administrative action, issuance of tenders, holding of auctions, sale of plots, resumption proceedings have all been raked up before the Courts on various occasions. The question which fell for consideration before the Supreme Court of India and various high Courts in these kind of litigations was as to whether policy decisions, administrative actions etc. can be interfered with exercising the power of judicial review or as to whether the Courts were to refrain from doing so. Though there are a catena of judgments on the subject, reference to few of them would be noteworthy.

In the case of Jagdish Mandal versus State of Orissa and others 2007 (14) SCC 517, the Supreme Court of India was seized of a challenge to the award of construction contracts to one Jagdish Mandal and Laxmi Sharma. The High Court of Orissa had allowed the writ petition filed by the unsuccessful bidder after which the matter reached the Supreme Court. The Supreme Court of India examined the scope of interference in judicial review of tender processes and award of contracts. While referring to various judgments on the subject, the Supreme Court of India held that judicial review of administration action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. It was held that its purpose is to check whether choice or decision is made lawfully and not to check whether choice or decision is sound.

- mind. It was held that a contract is a commercial transaction and evaluating tenders and awarding contracts are essentially commercial functions. The Supreme Court of India laid down that the principles of equity and natural justice stay at a distance and that if the decision relating to the award of a contract is bona fide and is in public interest, Courts will not, in exercise of power of judicial review, interfere even if a procedural abberation or error in assessment or prejudice to a tenderer is made out. It was held that the power of judicial review would not be permitted to be invoked to protect private interest at the cost of public interest or to decide contractual disputes.

It was held that attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade Courts to interfere by exercising power of judicial review should be resisted. It was held that such interferences, whether interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold. It was held that under the circumstances, before interfering in such matters in exercise of the power of judicial review, a Court should pose to itself the questions whether the process adopted or decision made by the authority is mala fide or is intended to favour someone and that whether the public interest is affected; "19.

Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and malafides. Its purpose is to check whether choice or decision is made 'lawfully' and not to check whether choice or decision is 'sound'.

matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of Page 0102 power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes.

The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold. Therefore, a court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions : i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone.

OR Whether the process adopted or decision made is so arbitrary and irrational that the court can say : 'the

decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached.'

ii) Whether public interest is affected.

If the answers are in the negative, there should be no interference under Article 226. Cases involving black-listing or imposition of penal consequences on a tenderer/contractor or distribution of state largesse (allotment of sites/shops, grant of licences, dealerships and franchises) stand on a different footing as they may require a higher degree of fairness in action.

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19. This Court being the guardian of fundamental rights is duty bound to interfere when there is arbitrariness, irrationality, mala fides and bias. However, this Court in all the aforesaid decisions has cautioned time and again that courts should exercise a lot of restraint while exercising their powers of judicial review in contractual or commercial matters. This Court is normally loathe to interfere in contractual matters unless a clear-cut case of arbitrariness or mala fides or bias or irrationality is made out. One must remember that today many public sector undertakings compete with the private industry. The contracts entered into between private parties are not subject to scrutiny under writ jurisdiction. No doubt, the bodies which are State within the meaning of Article 12 of the

Constitution are bound to act fairly and are amenable to the writ jurisdiction of superior courts but this discretionary power must be exercised with a great deal of restraint and caution. The Courts must realise their limitations and the havoc which needless interference in commercial matters can cause. In contracts involving technical issues the courts should be even more reluctant because most of us in judges' robes do not have the necessary expertise to adjudicate upon technical issues beyond our domain. As laid down in the judgments cited above the courts should not use a magnifying glass while scanning the tenders and make every small mistake appear like a big blunder. In fact, the courts must give "fair play in the joints" to the government and public sector undertakings in matters of contract. Courts must also not interfere where such interference will cause unnecessary loss to the public exchequer.

20. The essence of the law laid down in the judgments referred to above is the exercise of restraint and caution; the need for overwhelming public interest to justify judicial intervention in matters of contract involving the state instrumentalities; the courts should give way to the opinion of the experts unless the decision is totally arbitrary or unreasonable; the court does not sit like a court of appeal over the appropriate authority; the court must realise that the authority floating the tender is the best judge of its requirements and, therefore, the court's interference should be minimal. The authority which floats the contract or tender, and has authored the tender documents is the best judge as to how the documents have to be interpreted. If two interpretations are possible then the interpretation of the author must be accepted. The courts will only interfere to prevent arbitrariness, irrationality, bias, mala fides or

7 perversity. With this approach in mind we shall deal with the present case.

The Supreme Court of India, therefore, held that the Courts, being the guardian of fundamental rights would be duty bound to interfere when there is arbitrariness, irrationality, mala fides and bias. It was held that in all the judgments referred to by the Supreme Court of India, the Courts had been cautioned time and again that they should exercise a lot of restraint while exercising their powers of judicial review in contractual or commercial matters and that the Courts are normally loathe to interfere in contractual matters unless a clear-cut case of arbitrariness or mala fides or bias or irrationality is made out. It was held that the Courts must realize their limitations and the havoc which needless interference in commercial matters can cause.

It was held that in matters involving technical issues, the Courts should be even more reluctant because most of us in Judges' robes do not have the necessary expertise to adjudicate upon technical issues beyond our domain. It was held that the Courts should not use a magnifying glass while scanning tenders and make every small mistake appear like a big blunder. It was held that infact, the Courts must give 'fair play in the joints' to the Government and public undertakings in matters of contract and must also not interfere where such interference will cause unnecessary loss to the public exchequer.

Courts should give way to the opinion of the experts unless the decision is totally arbitrary or unreasonable. It was held that the Court does not sit like a Court of appeal over the appropriate authority and must realize that the authority concerned is the best judge of its requirements and, therefore, interference of the Courts should be minimal. It was held that if two interpretations are possible, then the interpretation of the author must be accepted and that the Courts will only interfere to prevent arbitrariness, irrationality, bias, mala fides or perversity. 30.

Very recently, the Supreme Court of India took a similar view in the case of State of Punjab and others versus Mehardin 2022 (5) SCC 648 and while referring to the cases of Jagdish Mandal versus State of Orissa and others and Silppi Constructions Contractors versus Union of India and Anr. Etc. Etc. (supra) as also the judgment in the case of TATA Cellular versus Union of India (1994) 6 SCC 651 reiterated the view. 31.

Most recently, while examining the challenge to the central vista project in the case of Rajeev Suri Versus Delhi Development Authority 2022

(11) SCC 1, a Constitution Bench of the Supreme Court of India examined the scope of judicial review of an Administrative or so to say quasi legislative action. It was held that the rule of law as accepted and settled in India, with regard to judicial interference in administrative and executive or policy matters is no more res integra. It was held that the duty enjoined upon the judiciary is to ensure checks and balances and to place itself between the Government and citizens when they come face to face in a Court of law and that it is meant to act as an equalizer and ensure that the flow of decisions

8 from executive to citizens is overseen through the prism of well-established principles, as and when called upon to do so. It was held that the judicial organ is not meant to impose the citizens' or even its own version of good governance upon the Government in the name of Rule of Law in exercise of its power of judicial review.

32.

The Apex Court examined the issue threadbare starting from observations made by Lord Brightman in the case of Chief Constable of the North Wales Police v. Evans [1982] 1 WLR 1155 to the observations of the Supreme Court of India in the case of TATA Cellular versus Union of India (supra), the observations made by Graham Aldus and John Alder in their book 'Applications for Judicial Review, Law and Practice' and while examining the need for heightened judicial review, the Supreme Court of India declined to interfere in the Central Vista Project and held as under:- "167. To sum up the above discussion, it may be noted that judicial review primarily involves a review of State action - legislative, executive, administrative and policy.

The primary examination in a review of a legislative action is the existence of power with the legislature to legislate on a particular subject matter. For this purpose, we often resort to doctrines of pith and substance, harmonious construction, territorial nexus etc. Once the existence of power is not in dispute, it is essentially an enquiry under Article 13 of the Constitution which enjoins the State to not violate any of the provisions of Part-III in a lawmaking function. The review of executive action would depend upon the precise nature of the action. For, the domain of executive is wide and is generally understood to take within its sweep all residuary functions of the State.

matter. For instance, an action taken under a statute must be in accordance with the statute and would be checked on the anvil of ultra vires the statutory or constitutional parameters. The enquiry must also ensure that the executive action is within the scope of executive powers earmarked for State Governments and Union Government respectively in the constitutional scheme. The scope of review of a pure administrative action is well settled. Since generally individuals are directly involved in such action, the Court concerns itself with the sacred principles of natural justice - audi altrem partem, speaking orders, absence of bias etc. The enquiry is also informed by the Wednesbury principles of unreasonableness. The review of a policy decision entails a limited enquiry.

As noted above, second guessing by the Court or substitution of judicial opinion on what would constitute a better policy is strictly excluded from the purview of this enquiry. Under the constitutional scheme, the government/executive is vested with the resources to undertake necessary research, studies, dialogue and expert consultation and accordingly, a pure policy decision is not interfered with in an ordinary manner. The burden is heavy to demonstrate a manifest illegality or arbitrariness or procedural lapses in the culmination of the policy decision. However, the underlying feature of protection of fundamental rights guaranteed by the Constitution must inform all enquiries of State action by the constitutional Court."

33.

In the back-drop of the provisions, terms and conditions and on the touchstone of the principles enunciated in the judgments referred to above, we proceed to examine the rival contentions. 34.

Admittedly, the disputed site was earlier planned into four showrooms/SCOs sites and all these four sites were put to open e-auction. In

pursuance to the auction notice issued on 17.01.2022, e-auction for three sites was held on 30.01.2022 whereas for the fourth site, the e-auction was held on 17.03.2022. Respondents No.2 and 3 were the highest bidders. The details of the successful bidder for each site alongwith the highest bid price, the date of issuance of the letter of intent and the amount deposited against the concerned site has been tabulated in the affidavit submitted by the Chief Administrator, HSVP-respondent No.1;

Site No.

Name of Successful bidder Bid price Issuance of LOI Amount deposited by the H1 bidder .51.03 crores 08.03.2022 25% of plot cost deposited within 30 days 1-P M/s DLF Home Developers Limited 2-P M/s DLF Utilities Limited .51.01 crores 08.03.2022 25% of plot cost deposited within 30 days 3-P M/s DLF Utilities Limited .33.91 crores 08.03.2022 25% of plot cost deposited within 30 days .64.01 crores 17.03.2022 100% payment deposited 4-P M/s DLF Home Developers Limited It, therefore, emerges that as regards the site No.4-P, 100% bid amount i.e. 64.01 crores was deposited and with regard to the remaining three sites, 25% of the plot cost was deposited. A total of 98 crores was, therefore, deposited by respondents No.2 and 3 qua the four sites. Having emerged as the highest bidders, presumably upon inspection of the sites, it was realized that the land parcel was not properly aligned and that optimum planning might not be achieved and also that the sites, after construction would be riddled with traffic congestion, parking woes etc. The bidder submitted a

9 representation to respondent No.1 for the redressal of these grievances. They also preferred CWP Nos.17571 and 17576 of 2022 before this Court. In the meantime, on account of non-deposit of 75% of the plot cost for sites No.1 to 3, the same were cancelled and even the said action was challenged by filing amendment applications. However, on 09.02.2023, a statement was made by learned counsel representing HSVP that one composite plot comprising of 1.26 acres could be put to e-auction in which the petitioners (respondents No2. and 3 herein) may also participate. It was submitted that in case, the petitioners participate in the auction, there would be no forfeiture of the amount which had already been deposited by them. In case they remain unsuccessful, the amount would be refunded to them. It was further submitted that the process of putting the composite plot to auction would be carried out within a period of six weeks in case the remaining price was deposited as bank guarantee by the highest bidders. The writ petitions were accordingly disposed of;

"On the last date of hearing i.e. 13.01.2023, following order was passed:- " Learned senior counsel for the petitioners submit that the petitioners have no objection if the amount is calculated in terms of the TOD/TDR Policy as has been framed by the respondents.

Learned counsel for respondent-HSVP submits that in case their claim falls within the said policy that has been prayed for, their claim would be considered and appropriate decision will be taken thereon within a period of two weeks.

List on 09.02.2023.

- Photocopy of this order be placed on the connected case file."

In pursuance to the said order, learned counsel for the respondent-HSVP has submitted that it would not be feasible to proceed to accept the submissions, as have been made by the counsel for the petitioners. He, however, on instructions from Sh. Ajit Balaji Joshi, IAS, Chief Administrator, HSVP, states that one composite plot comprising of 1.26 acre can be put to eauction, in which the petitioners may also participate. In case the petitioners participate in the auction, there will be no forfeiture of the amount, which has been deposited by the petitioners and in case, they are unsuccessful, the amount shall be refunded to them. He also states that the said process of putting the composite plot to auction would be carried out within a period of six weeks on depositing the bank guarantee as per the reserved price by the petitioners.

It has further been submitted that the amount, which has already been deposited, will be taken as a part of that bank guarantee. The said auction would be carried out within a period of six weeks from today. Counsel for the petitioners have no objection to the abovereferred to process being carried out.

In the light of the above, these writ petitions are disposed of binding the parties to the statements of their respective counsel."

35.

Subsequently, applications for modification/clarification of the orders were also moved which were, however, declined by the Coordinate Bench vide order dated 21.04.2023.

36.

To put the composite plot to auction, a meeting was held on 14.12.2023 under the Chairmanship of the Chief Administrator, HSVP Gurugram-respondent No.1. It was also attended by the Administrator

7 HSVP, Gurugram, the Chief Controller Finance HSVP, the Chief Town Planner HSVP, the Senior Town Planner HSVP, the Legal Remembrance HSVP, the Estate Officer-II HSVP, Gurugram and the Addl. District Attorney HSVP. A perusal of the minutes of the meeting (Annexure R-3) shows that the matter was discussed and deliberated upon in detail. It was also noticed that the auction of the site in question from the very beginning, witnessed inefficient planning as maximum land use efficiency in terms of FAR could not be achieved.

Certain other technical observations were also made and it was ultimately decided that having won the bids for all four sites and having deposited 98 crores alongwith offer of bank guarantee for balance amount of fresh reserve price, it would be expedient for HSVP to design an appropriate bidding process to provide level playing field to both the previous highest bidders and the prospective bidders. It was stated that Swiss challenge is adopted in circumstances where the original bidder has a unique offer to make. It was observed that having put approximately 275 crores as a secured & underwritten offer, Swiss challenge would be a suitable bidding process and that the same would provide the right of first refusal to the private respondents herein which they deserved having won the bids of all four plots already.

"The present meeting is convened to discuss the issues arising pursuant to submission of representation dated 11.07.2023, 22.09.2023 & 06.10.2023 by DLF Ltd. seeking Right of First Refusal in the auction of composite plot measuring 1.32

7 acres at Sector-43 Gurugram and observations of ACSTCP on earlier revised proposal submitted for getting approval of Hon'ble Chief Minister-cum-Chairman HSVP in the matter. The representations were discussed and deliberated in detail and observed that after Hon'ble High Court orders dated 09.02.2023 and 21.04.2023 on subjected matter, proposal to re-auction the composite site of 1.26 acres now read as 1.32 acres on some conditions was approved by Hon'ble C.M. However, it was not deliberated at that point of time whether it will be fair to the petitioners whose rights have already been created partly on this site by depositing full amount of auction of one showroom and 25% of auction amount of rest of the three showrooms to be denied Right of First Refusal. Particularly when, it was noted that, the grievance of the petitioners was that they couldn't have utilized implied allocation of FAR in terms of TOD/TDR.

Now, the petitioner M/s DLF Ltd. is requesting that they have agreed to give up their rights pertaining to all four showrooms including the One fully paid showroom, to be included in the auction of composite site of 1.32 Acres and agreed to under-write the said auction equivalent to the reserve price by providing the Bank Guarantee and Rs.98 crores already deposited for Four No. showrooms, only on account of assurance that their right be protected and they will be granted Right to First Refusal.

This request for seeking Right of First Refusal is already considered and deliberated by the committee in its earlier meeting held on 02.08.2023 under the chairmanship of the then CA HSVP (NP/69-72) and submitted its proposal for approval of Hon'ble Chief Minister-cum-Chairman HSVP. On this proposal, ACSTCP had made an observation regarding the necessity of revising the earlier approval proposal and the

7 recommendations of CA, HSVP on the request of the petitioner for Right of First Refusal.

Fundamentally, the auction of this site, from very beginning, witnessed inefficient planning as maximum land use efficiency in terms of FAR couldn't be achieved. Haryana Building Code allows FAR of 350 in TOD zone and in addition, FAR can be loaded in the form of TDR and GRIHA. And also, the site was conceptualized as SCO site with 35% area planning for built up and the balance area for parking and other services as per norms. For a standalone SCO- built up area this would amount to an FAR of 500 considering the fact that we are allowing overall an FAR of 175 on a foot print of 35% buildable area (1.75/0.35=5).

However, the said SCOs were auctioned with fAR of only 1.75 individually with an option to purchase extra FAR to be loaded under TOD policy. The advertisement Dt. 30.01.2022 for the said sites to be read with Public Notice by HSVP clarifies the same.

At this juncture, it is worth understanding the perspective of buyer-developers as to what were the parameters to assess the intrinsic value of the land in absence of both architectural plan and zoning plan. Once the developer purchases all four showrooms/SCOs carved out of 1.26 acres of planning unit, it was obvious to assume amalgamation to achieve the envisaged FAR as per HBC/TOD norms. However, the various communication of petitioners was examined by HSVP and it was conceded in the Hon'ble High Court as followed;

'In pursuance to the said order Ld Counsel for respondent-HSVP has submitted that it would not be feasible to proceed to accept the submissions, as have been made by the counsel for petitioners. He, however,

on instructions from Sh. Ajit Balaji Joshi, IAS Chief Administrator, HSVP states that one composite plot comprising of 1.26 acres can be put to e-auction, in which petitioners may also participate.... The said auction would be carried out with in a period of six weeks from today.

However, the said auction couldn't be carried out on-time as another CM application was filed on behalf of CA, HSVP for modification/clarification of the order dated 09.02.2023. Said CM's were listed before Hon'ble High Court on 21.04.2023 and the Hon'ble Court didn't modify its earlier orders and clarified that no interest is payable to petitioners and the same will not be treated as precedent. It is also important to interpret the directions of Hon'ble High Court Dt. 21.04.2023 in the right earnest. In final paragraph of the Order the Court observed that; "....In the light of the Judgment of Hon'ble Supreme Court in Ravi Developers' case (Supra), the same is not required to be made part of the order which we had earlier passed. In case the petitioners want to make such an assertion, it would be open to them"

Having won the bids for all four sites and having deposited Rs.98 crores along with offer of Bank guarantee for balance amount of fresh reserve price, it will be expedient on HSVP to design an appropriate bidding process to provide level playing field to both the petitioners and prospective bidders. Swiss challenge is adopted in circumstances where the original bidder has a unique offer to make. Having put approx. Rs.275 crores as secured & underwritten offer, the Court's observation and assertions made by the petitioners in their representation Dt. 11.07.2023, Swiss challenge is a suitable bidding process. That would provide them the Right of First

Refusal they deserve having won the bids of all four plots already.

In this matter, the committee observes that petitioners are surrendering all the rights of one of the fully paid Showroom, Plot No.4 and rights on the other three showrooms, Plot No.1, 2 & 3 also for which 25% payments have been made, to be put up for re-auction as a consolidated plot over an area measuring 1.32 acre. The petitioners are under writing the amount of approx. Rs.100.00 Crores (One hundred crores) and are giving bank guarantee for the remaining amount of Rs.170 crores (one hundred seventy crores) as committed in the Hon'ble High Court, which is also part of order dated 21.04.2023. Therefore, it will not be fair to consider fresh bidders equivalent to the petitioners who have already created part rights on this site and deposited such amount promise to pay the balance as a bank guarantee with HSVP.

Since by re-auctioning this site now as a composite site for commercial complex of area measuring 1.32 acres, HSVP is going to gain more revenue and the land will be optimally utilized by loading TOD/TDR, which will give additional revenue to the HSVP/Government, hence, it is now recommended that;

The complete composite site of commercial complex of area measuring 1.32 acres, Sector-43, Gurugram be reauctioned under the Swiss Challenge Mode at a fresh reserve price. The fresh offer of Rs.274.26 crores (Rs.98 crores payment paid for four no. SCOs/Showrooms carved in 1.26 acres of land, out of the total consideration/auction price of approx. 200 crores along with Bank guarantee for balance amount of Rs.176.26 crores + 15% interest till the date of public

notice for auction) will now become the proposal under Swiss Challenge by the petitioners against which other prospective bidders would also bid afresh as per earlier e-auction policy Dt. 20.05.2021. However, bid incremental value may be kept at as per e-auction policy.

As per the statement made in High Court, reserve price be fixed at Rs.274.26 crores (intimated to them through a letter dated 23.09.202) plus 15% interest calculated on balance amount of Rs.176.26 crores (Amount of Balance BG to be paid towards Reserve Price) till date of Public Notice of auction. The earnest money deposit for other prospective bidders will be fixed at 25% of the Reserve Price calculated till Public Notice of Auction. The Swiss Challengers/petitioners will have to deposit BG for Balance Reserve Price before the EMD date for other prosepctive bidders. While there was an argument by CCF, HSVP that EMD be fixed as per the e-auction policy, CA, HSVP made it a point that there is a need to provide a levbel playing field between Swiss Challenger and rest of the players. It is improtant to factor-in cost of finance.

It was deliberated that following a normal route of auction by asking for five (5%) EMD would invite non-serious (and possibly the players with predatory instincts with an effort to jeopardize the auction process). The question was whether increasing the EMD would provide a level playing field and if so, what should be the EMD in terms of percentages. It was proposed to fix it at 20%, however, it was pointed out that the terms of e-Auction policy has 25% of

7 payment for issuance of LOI. As we have already reached a stage of issuance of LOI and with only one day period available for Swiss Challenger to match the highest bid, 25% EMD itself would make the right benchmark. If he chooses not to match the highest bid, LOI will be issued to H1. Hence considering the stage of auction, in the background of nature of Swiss Challenge mode of auction, it is recommended to fix 25% of EMD.

On the completion of auction, in Case, there is a higher bid than the Petitioner/ Swiss Challenger's bid of Reserved Price, the Petitioner will be asked by HSVP within one (1) working day to match the highest bid by H1 by 2% of RP Increment. If the Swiss Challenger so accepts to match the bid, he will have to convey the same within one (1) working day and further to deposit the balance amount (Bid Amount minus 98 Crores) to HSVP within 120 days as per eAuction Policy dated 20.05.2021. On payment of the entire bid amount (X-98 Crores), his BG will be refunded to him.

In case, the Petitioner/Swiss Challenger does not accept to match the highest bid, the Highest successful bidder's bid will be accepted and he would have to pay the balance 75% payable within 120 days as per E-Auction Policy dated 20.05.2021.

In case, the Swiss Challenger matches the H-1 bid, the former/petitioner would pay an additional two percent, out of which one percent would goto the H-1 bidder.

However, in case no bidder competes in the said Auction for two successive auctions, the saidsites

will be allotted to Swiss challenger/petitioner with the above reserve price plus 2%. In such case also, Balance payment will be made in 120 Days as per above E-Auction policy. Additional one month of period is allowed, if payment is made along with interest as in case of original bid process under which these sites were auctioned.

It is also important to mention that in case the petitioner is unsuccessful, his initial deposit of Rs.98 crores and BG paid for balance reserve Price will be refunded without any interest and he will have no further right in any of the 4 showroom sites auctioned as Composite Site.

The fresh Proposal will facilitate no litigation on part of the petitioner, who may claim interest on his initial deposit of 98 crores beyond the 6 weeks auction timlines that High Court had mandated in its order dated 09.02.2023.

In this regard, it is recommended that HSVP may allowed to withdraw the letter Dt. 15.09.2023 and this fresh proposal may be adopted. The said proposal is necessitated to conclude the EAuction at the earliest in the light of above submissions and also secure much higher revenue by Efficient Land Use/Utilization.

LR, HSVP has pointed out that Legal guidance/opinion was sought from Ld. AG, Haryana at NP/7679, which may also be obtained. Govt. may be requested to take opinion of Ld. AG, Haryana at appropriate time. The above proposal, recommendation is submitted to the Hon'ble Chief Minister-cum-Chairman, HSVP for seeking the approval in the matter."

It has been stated in the affidavit of the Chief Administrator, HSVP that due approval was given by the Government to the said proposal. 37.

If one examines the whole issue in a broad frame, it emerges that a conscious decision was taken by respondent No.1 to adopt the Swiss challenge mode with a view to provide a level playing field to both the previous highest bidders and prospective bidders. The decision was approved by the Government. The decision does not appear to be arbitrary nor does it appear to be mala fide or with some oblique motive or only with a view to help respondents No.2 and 3. The rights of a bidder/s who had already deposited the entire reserve price had to be protected. A state has to provide ease of business and has to adopt a methodology which would avoid litigation for no person invests money to invite litigation.

Even otherwise, the respondents would be fully empowered to adopt a procedure which would not only fetch maximum revenue for the State but would also provide ease of business and confidence of making huge investments to serious players. Still further, respondent No.1 would benefit by around 90 crores for the four sites had earlier been auctioned for a total amount of around 200 crores and the reserve price now fixed is around 288 crores. We, therefore, do not find any illegality in the action of respondent No.1 in adopting this method for conducting the e-auction and we do not find any fault with the decision making process. If one considers the ratio laid down in the judgments referred to in the preceding paragraphs, the inescapable conclusion which we arrive at is that it is not a case where interference by this Court is called for.

38.

The petitioner has also not been able to clear the air with regard

7to himself much less having been able to clear the air about the alleged ill intentions of respondent No.1. Concededly, there are no averments in the writ petition as regards the avocation of the petitioner. Whether he is a person actually into Real Estate or is only a busy body or a nosy-parker is not known. The writ petition also contains no details about any previous bids having been given and secured by the petitioner and further no details are there as regards his financial soundness. The only endeavour of the petitioner appears to be to participate in the auction with 5% earnest money which, apparently, he has no right and he would be free to participate as per the terms and conditions laid down by respondent No.1. He would be no one to dictate terms and conditions. If respondent No.

1 is able to secure a better price and a gain to the State Exchequer, it would be fully entitled to do so. No State would be expected to cause loss to the State exchequer merely by taking populist measures. The argument as regards mention of the Policy dated 20.05.2021 would not be relevant once the detailed terms and conditions were given in the notice. The petitioner is simply trying to draw undue benefit from the same.

39.

We have gone through the judgment relied upon by learned counsel for the petitioner. In Reliance Energy Limited & Another versus Maharashtra State Road Development Corporation Ltd. & Others's case (supra), the Apex Court, while relying upon the judgment of the Constitution Bench of the Supreme Court of India in the case of I.R.Coelho v. State of Tamil Nadu, (2007) 2 SCC 1, held that the standards applied by Courts in Judicial review must be justified by constitutional principles which govern

the proper exercise of public power in democracy. It was held that Article 14 is not a free-standing provision and has to be read in conjunction with rights conferred by other Articles like Article 21 of the Constitution of India. It was held that Article 21/14 of the Constitution of India is the heart of the chapter on fundamental rights and it covers various aspects of life including the concept of 'level playing field' which is an important concept while construing Article 19(1)(g) of the Constitution of India. It was held that the said doctrine provides space within which equally-placed competitors are allowed to bid so as to subserve the larger public interest. The effort of learned counsel for the petitioner was to convince the Court that by adopting the Swiss challenge method, respondent No.

1 had not provided a level playing field. We are not inclined to accept this argument because the petitioner, in the first place, has failed to prove that he has an equal standing as that of the private respondents or of other similarly placed entities. Still further, an equal opportunity was provided to all serious players and even the petitioner could have participated in the auction process. The judgment would, therefore, not come to the aid of the petitioner. In so far as the judgments in the cases of Balaji Ventures Pvt. Ltd. Versus Maharashtra State Power Generation Company Ltd. & Anr. and Netai Bag and others versus State of W.B.

and others (supra) are concerned which have been relied upon by learned counsel representing the respondents, they are in line with the judgments referred to while discussing the law on the subject and, therefore, would be an addition to the same.

In the totality of the facts and circumstances as have been

discussed in the preceding paragraphs, we do not find any merit in the present petition and the same is accordingly dismissed.

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