Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.9744 of 2012 ====================================================== Radha Ballabh Health Care Research Institute(P) Ltd., Through Its Chairman, Dr. Rabindra Narain Singh G-75-77, P.S. Colony Kankarbagh, Police Station , Kankarbagh, District Patna (800020) .... .... Petitioner/s Versus 1. The Bihar State Housing Board, Through The Managing Director, 6, Sardar Patel Marg, Police Station Secretariat, Patna- 800015 2. The Managing Director, Bihar State Housing Board, 6, Sardar Patel Marg, Police Station Secretariat, Patna 800015 3. The Estate Officer, Bihar State Housing Board, 6, Sardar Patel Marg, Police Station Secretariat, Patna 800015 .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Shrawan Kumar, Sr. Advocate Mr. Satish Kumar Singh, Advocate For the Respondent/s : Mr. Anshuman Singh, Advocate Mr. Pratik Kumar Sinha, Advocate. ====================================================== CORAM: HONOURABLE MR. JUSTICE SHAILESH KUMAR SINHA C.A.V ORDER 5 10-05-2013 In this writ application, the challenge is to the decision of the respondent – Housing Board, vide Memo No. 10792 dated 9th of December 2012 and Office Order No. 10871, dated 14th of December 2011, as contained in Annexures -16 and 17 respectively whereby Housing Board decided to allot alternative plots to the petitioner near Rajendra Nagar Over Bridge in lieu of allotment of original plot in Lohia Nagar, Kankarbagh, Patna, as mentioned in the advertisement (Annexure-1) on the basis of Swiss Challenge Method. The petitioner prays for quashing the aforesaid Patna High Court CWJC No.9744 of 2012 (5) 2 decision of the board as also for a direction to allot the plot in terms of the advertisement in Lohia Nagar Housing Colony, as mentioned at Serial No. 8 of the advertisement, dated 10th of May, 2008, as contained in Annexure -1. The petitioner’s case is that pursuant to the advertisement, the petitioner applied for allotment of the plot for establishing a hospital with respect to a piece of land details, as mentioned at Serial No. 8 of the advertisement (Annexure-1). Pursuant to the aforesaid advertisement, the petitioner applied and deposited the earnest money of Rs. One lac, as required and remained all along ready to comply the terms and conditions for the allotment, in question. The petitioner was the sole applicant against the said plot. The petitioner also furnished all the necessary certificates and no objection certificate issued from the State Government. Since, even after complying the requirements in terms of the advertisement, the allotment letter was not being issued, the petitioner moved this court through writ application vide C.W.J.C. No. 9591 of 2009 which was disposed of vide order dated 3rd of February 2011 (Annexure-11/1). The matter was remanded, directing the respondent-Housing Board for taking a decision in light of the discussions made in the order. The petitioner, as per its letter dated 15th of February 2011, (Annexure-11) enclosing all the relevant documents alongwith the order of this court, requested the board to issue the
Legal Reasoning
Patna High Court CWJC No.9744 of 2012 (5) 3 allotment letter. The petitioner, since did not receive the letter, approached the Managing Director of the Board and during the discussion, the petitioner having no option but to agree to the proposal of the Managing Director for accepting another plot of land for the construction of the hospital, in lieu of the original plot for which, the advertisement was made even though the area was much lesser and as such, the petitioner requested for allotment of the alternative plot, proposed by the Board vide letter dated 4th of May 2011 (Annexure-13). The petitioner, on receipt of the communication from the Board, vide letter dated 14th of September 2011 (Annexure-14) for submitting technical and financial proposal, so as to take further action, the petitioner submitted the aforesaid proposal on the same date as per annexure-15. The petitioner clearly mentioned in its financial proposal that the land, which was advertised for allotment, was for an area of 43,000 square feet for a consideration money of Rs. 1,71,89,057.00/- and as such, , in lieu of original plot of land, the rate for allotment of proposed land should be at the same with proportionate reduction, on account of the lesser in area. The alternate plots offered to the petitioner was Plot Nos. G-5 and G-6, measuring an area of 10,000 and 14,000 square feet respectively near the Rajendra Nagar over Bridge in Patna. However, surprisingly, the Board took a decision contrary to the terms of the advertisement and decided to allot the aforesaid alternate plots on the basis of Patna High Court CWJC No.9744 of 2012 (5) 4 the Swiss Challenge Method, as per office order No. 10792 dated 09.12.2011 (Annexure-16). The aforesaid decision was communicated to the petitioner, as per letter no. 10871 dated 14.12.2011 (Annexure-17). The petitioner objected to the above decision of the Board, as per letter dated 3rd of January 2012 (Annexure-18) and requested the Board to consider his request for allotment on the terms and conditions, as per the advertisement (Annexure-1). The respondent –Board did not take any decision and communicated to the petitioner. A Contempt Application vide M.J.C. No. 68 of 2012, was filed
Decision
which was disposed of, taking note of facts in the show cause that Board has considered the request for allotment in light of the State Government decision dated 05.08.2008 (Annexure-8). The said contempt application was, accordingly, disposed of by order dated 04.04.2012 (Annexure- 20) with observation that the grievance with respect to the allotment, can be agitated only in a fresh writ application and as such, the petitioner filed the above writ application. A counter affidavit is filed on behalf of the respondent – Board taking the stand that the petitioner has submitted only the temporary approval of recognition from the National Board Examination, Ministry of Health, New Delhi for the period 2007-2010 (Annexure-5) and it is not known, as to whether the petitioner got the permanent approval or not. Another stand as per its counter affidavit, is that as per the Patna High Court CWJC No.9744 of 2012 (5) 5 decision of the Board, the alternative Plot Nos. G-5 and G-6, earmarked for the petitioner in lieu of the original plot but the board decided to allot the aforesaid two plots on the basis of the Swiss Challenge Method, as per its decision vide Annexures -16 and 17. It has been submitted that under the aforesaid Swiss Challenge Method, which is a new step in the field of public private partnership mode requires that the private sector enterprises to suo motu identify the project and, then, approached the government with proposal. Subsequently, the Government invites competitive bidding process in the project, as per standard rules. The said method is well accepted and the same is also approved by the Apex Court in the decision reported in (2009) SCC 462. It is also stated that in terms of the advertisement (Annexure-1), it was open for the Board to cancel the allotment of land without assigning any reason. Mr. Sharwan Kumar, learned senior counsel appearing for the petitioner submits that it is not in dispute that in terms of the advertisement, the petitioner applied for allotment of the land vide plot no. Sector –I H.C- 1 for an area of 43,000 square feet, as detailed in Serial No. 8 of the said advertisement, (Annexure-1). The petitioner, in terms of the advertisement deposited the earnest money, as required and further submitted no objection certificate from the State Government and other required documents but the Board did Patna High Court CWJC No.9744 of 2012 (5) 6 not issue any allotment letter and thereafter, petitioner approached the Managing Director of the Board and during the discussion alternate plots i.e. Plot Nos. G-5 and 6 near the Rajendra Nagar Over Bridge was decided for allotment in lieu of the original plot at Lohia Nagar even though the proposed alternate plots were of lesser area. It is further submitted that the decision of the board for allotting the aforesaid two plots on the basis of the Swiss challenge method was absolutely illegal and unjustified since the petitioner was not a fresh applicant going with the proposal, as required under the Swiss challenge method. The petitioner was an applicant against the advertisement as contained in Annexure-1 as also for alternate plots as proposed to the petitioner in lieu of the original land. It is further submitted that against the said advertisement, petitioner was the sole applicant and as such, the plot advertised for allotment was required to be allotted in favour of the petitioner. The decision of the board (Annexure-16) that since the part of the original plot having an area of 43000 square fit could not be allotted partly, as such, alternate plot should be allotted does not stand to reason. The petitioner at no point of time requested the board for allotting lesser area and as such, proposing to allot alternate plot on the said ground is absolutely illegal and baseless. It is further been submitted that respondent has not taken any decision on the letter dated 3rd of January 2012 (Annexure-18), requesting the Patna High Court CWJC No.9744 of 2012 (5) 7 board to consider the application for allotment of the alternate plots in lieu of the plot, as mentioned in the advertisement not on the basis of the Swiss challenge method, as mentioned in the letter dated 14.12.2011 (Annexure-17). Mr. Ansuman Singh , learned counsel for the respondent – Board submits that document of approval of the recognition the petitioner was provisional for the period 2007- 10 and secondly, the petitioner having accepted the alternate plots i.e. Plot Nos. G-5 and G-6 near the Rajendra Nagar, Railway Over Bridge cannot validly challenge the above method of allotment. The Swiss challenge method for allotment is well accepted in abroad and the same has also been found correct by the Apex Court since it is beneficial method in the interest of both the parties. It has further been submitted that the letter dated 14.12.2011 (Annexure-17), communicated to the petitioner, was based on the decision of the board (Annexure-16). Considering the rival submissions of the parties and their respect pleadings, it would appear that it is not in dispute that an advertisement (Annexure-1) was issued for allotment of land including the land at serial no. 8 mentioning specific plot number, area and consideration money. The petitioner deposited the earnest money of Rs. One lac as required and further produced No Objection Certificate dated 05.08.2008 (Annexure-8), from the State Government as also Patna High Court CWJC No.9744 of 2012 (5) 8 the certificate, issued by the National Board of Examination, Ministry of Health and Welfare, New Delhi for the period of 2007-2010. It is also not in dispute that an alternate Plot Nos. G-5 and G-6 near the Rajendra Nagar Railway Over Bridge, Patna are being allotted to the petitioner. However, on perusal of the office order dated 09.12.2011 (Annexure-16) it would appear that the reasons, assigned for proposing the alternate plots, were that since the original plot advertised for allotment is having a larger area and as such, by allotting smaller area from the said advertised plot, may adversely affect the commercial interest of the Board. There is noting on the record to show or to suggest that, as to who made the request for allotting smaller portion of the original advertised plot since the petitioner has expressed his willingness all along to take the advertised plot and even during hearing of the writ application, the petitioner reiterated its stand. However, since the petitioner agreed to accept the proposal of the Board for taking the smaller plot referred-to-above, having a lesser area but nonetheless, the other terms and conditions for allotment, as per the advertisement, cannot be given a go-bye. As submitted by the learned counsel for the Housing Board on the basis of the statement made in the counter affidavit that Swiss Challenge Method shall have entirely different procedure for allotment on the basis of the private public mode, in my opinion, the same cannot be applied in the case of the Patna High Court CWJC No.9744 of 2012 (5) 9 petitioner. Under the aforesaid method, the interested person alongwith the project has to approach the government and the said project shall be subject to the competitive bidding, in which, the person approaching with the project shall have first right refusal. As observed earlier, the petitioner did not move to the government with its proposal under the Swiss Challenge Method, in my opinion, the process of allotment of land in favour of the petitioner is to be carried out in terms of the advertisement, save and except, the change of plot, with his area and location, as proposed by the board, earmarked for allotment. The submissions, advanced on behalf of the respondent – Board for objecting the allotment of land in favour of the petitioner as stated in the counter affidavit runs counter to the decision of the board and as such, the same cannot be sustained in law. In view of the reasons and discussions made above, the decision of the board to allot the Plot Nos. G-5 and G-6 in favour of the petitioner vide office order no. 160 of 2009 as contained in Memo No. 10792 dated 09.12.2011 (Annexure-16) as also the Letter No. 10871 dated 14.12.2011 (Annexure-17) on the basis of Swiss Challenge Method is hereby quashed. The respondent – Board is directed to consider the letter dated 3rd of January 2012, written by the petitioner to the respondent – Board and on considering the same, issue allotment letter in terms of the advertisement, as contained in Patna High Court CWJC No.9744 of 2012 (5) 10 Annexure -1 with respect to the plot nos. G-5 and 6 in lieu of the original plot as mentioned in the advertisement on the same terms and conditions with proportionate cost on account of the area of the plots being reduced. The writ application stands disposed of with the above observations/directions. Jagdish/- (Shailesh Kumar Sinha, J)