Page 1

Reportable

IN THE SUPREME COURT OF INDIA  

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.  2833-2834    OF 2014 (Arising out of Special Leave Petition (Civil) Nos. 672- 673 of 2011)

Aayush Buildwell Pvt. Ltd.                      … Appellant

Vs.

Haryana Urban Development Authority               ... Respondents

J U D G M E N T

Pinaki Chandra Ghose, J.

1. Leave granted.

2. These appeals have been filed by the present appellant -- Aayush  

Buildwell Pvt. Ltd. -- against the final order dated March 13, 2008  

passed by the High Court of Punjab and Haryana in CWP No.9962  

of  2007 which was disposed in terms of  judgment passed in CWP  

No. 7790 of 2007  titled “Delhi Roadways Corporation Ltd. vs. The  

Haryana  Urban  Development  Authority  &  Ors.” and  the  order

Page 2

dated March 30, 2009 dismissing the review petition being Review  

Application No. 132 of 2008 in CWP No. 11501 of 2007.

3. The question which came up before this Court, as pressed by the  

appellant, is whether on the basis of a comparative analysis, the  

appellant was eligible to have allotment of a plot in its favour, and  

further while setting aside the process for allotment of plots, can it  

direct the process afresh allowing the ineligible candidates/parties  

to participate in the said fresh process.  

4.     The facts of the case briefly are as follows :-

4.1. In  January/February 2006,  the respondent-authority  (Haryana  

Urban  Development  Authority)  issued  an  advertisement  for  

allotment of freehold institutional plots for Corporate Offices, R&D  

Centres, Corporate Towers and Staff Training Institutes in Sectors  

18, 32 and 44 of Gurgaon. The appellant obtained the brochure  

and duly applied for a half an acre plot in accordance with the  

said advertisement. The earnest money of Rs. 27,75,000/- by way  

of a demand draft and the  project report of the appellant were  

duly submitted.  

4.2. The  respondent-authority  duly  conducted  interviews  of   371  

applicants and on June 9, 2006, the appellant duly appeared  in  

2

Page 3

an interview for such allotment before the authority in terms of  

letter dated June 1, 2006. By letter dated September 22, 2006,  

the earnest money of the appellant was refunded without giving  

any reasons therefor.  

4.3. The allotments made were challenged before the High Court in  

CWP No.  17138 of  2006 by M/s.  Sigma Corporation India  Ltd.,  

notice  was  issued  on  October  31,  2006  and  interim  stay  was  

granted. Subsequently, said CWP No.17138 of 2006 was allowed  

to  be  withdrawn  by  an  order  dated  October  3,  2007  in  an  

application being Civil Misc. No.15033 of 2007 in CWP No.17138  

of 2006.  

4.4. It  appears  that  Delhi  Assam Roadways  Corporation  Ltd.,  an  

applicant  for  such allotment,  which had filed CWP No.  7790 of  

2007, also filed an application under the Right to Information Act,  

2005 in  respect  of  the allotments  made by the said authority.  

Since no reply was received within the time prescribed under the  

Act, the said applicant moved the Central Information Commission  

on  March  14,  2007  and  subsequently,  by  letter  dated  May  7,  

2007,  the  respondent-authority  provided  the  requisite  

information,  admitting  that  no  report/comments  were given by  

3

Page 4

the  Committee  regarding  the  individual  application  for  such  

allotment. The appellant found discrepancies in the allotment and  

duly asked for the information under the RTI Act, with regard to  

the profiles of the companies which were allotted plots in Sector  

32 of Gurgaon.

4.5. Being aggrieved by the action on the part of the respondent-

authority, the appellant filed CWP No. 9962 of 2007 before the  

High Court. The said CWP was disposed of by order dated March  

13, 2008 along with the writ petitions in terms of a common order  

passed in CWP No. 7790 of 2007 in  Delhi Roadways Corporation  

Ltd. vs. The Haryana Urban Development Authority & Ors.

4.6. The  High  Court  in  its  judgement  dated  March  13,  2008,  

observed that no pre-determined criteria was published nor terms  

and conditions which were to apply to the allotments were made  

known to the applicants, and that the guidelines framed by the  

Committee regarding the allotments were also not kept in mind  

and no reasons have been highlighted for adopting the allotment  

method over the method of sale by auction. Thereby, the Court  

held that :   

4

Page 5

“We are further of the view that the so called selection  committee failed to advert to the comparative merits of  the applicants and it has not been pointed out as to why  the allottee was selected from amongst those applicants  who have been left out”.

4.7. The Court  perused the comparative table submitted by the  

petitioner  in  CWP  No.  7790  of  2007  and  identified  the  

discrepancies in the allotment process, thereby holding that the  

“respondents have adopted the pick and choose method”.  The  

Court further held that :

“...in the absence of any declared pre-determined criteria  element of arbitrariness has crept in which has resulted in  flagrant violation of Article 14 of the Constitution”.

4.8. On these  grounds  the  High  Court  set  aside  the  allotments  

made to the private respondents in Sectors 18, 32 and 44 of  

Gurgaon.  Furthermore,  the  Court  gave  the  Government  and  

respondent no.  1 two options ‘A’  and ‘B’  along with a set  of  

directions  each  regarding  the  allotment;  and  either  of  the  

options had to be followed.  

4.9.Being aggrieved, one of the private respondents filed Review  

Application No. 418 of 2008 in CWP No. 9962 of 2006 before the  

High Court for recalling of its order dated March 13, 2008.  The  

5

Page 6

High  Court  by  a  common  judgment  dated  March  30,  2009  

dismissed  both  Review  Application  No.  418  of  2008  and  the  

earlier  filed review application being R.A.  No.  132 of  2008 in  

CWP No. 11501 of 2007.  

4.10. Delhi  Assam  Roadways  Corporation  Ltd.  as  well  as  the  

respondent-Authority-  Haryana  Urban  Development  Authority  

and 28 other allottees filed  special leave petitions against the  

orders of the High Court before this Court. All the petitions were  

tagged together  under SLP [C] Nos.10818-10823 of  2008 and  

were  disposed  by  this  Court  on  29th April,  2011  when  the  

following order was passed :  

       “Delay condoned.

Learned  Additional  Solicitor  General,  on  instructions,  submits  that  the  petitioner,  namely,  Haryana  Urban  Development  Authority  shall  be making available  half  an acre of  plot,  as  far  as  possible,  Plot  No.55-P,  Sector-44  (Institutional),  Gurgaon  to  the  first  respondent  in  SLP©  10818-10823  of  2008,  namely,  Delhi  Assam  Roadways Corporation Ltd.  

    In   the circumstances,  there   shall be a direction directing the    Authority to  allot  the  said  plot,  as  expeditiously  as  possible,  preferably  within  four  weeks  from  today.   The  allotment  shall  be  made  on  the  same  terms  and  conditions on which the other   respondents had been  earlier allotted.  

6

Page 7

Obviously,  no  further  dispute,  as  such,  survives  so  far  as  the  allotments  made in favour of other respondents are concerned.  

             In such view of the matter, no further orders,  as such, are required to be passed and the order of  the High Court shall stand modified to the extent.

            It is made clear that allotments already made  in favour of the other respondents is not interfered  with.

       The impleadment  application  in  SLP  (C)  No.10818-10823  of  2008  is  allowed.

      The  special  leave  petitions are, accordingly, disposed of.”

4.11. It appears from the facts that the appellant filed SLP [C]  

Nos.672-673/2011 before this Court raising the question which has  

been mentioned hereinabove, and on January 7, 2011 notice was  

issued  on  the  SLP  as  well  as  the  application  for  condonation  of  

delay. It further appears that by an order dated March 8, 2011 on  

the basis of the application filed by the appellant, it was ordered in  

Chambers :  

“At the risk and peril of the petitioner, respondent Nos.2- 32 are deleted from the array of parties. Amended cause  title shall be filed within two weeks from today.”  

7

Page 8

5. Thereafter, the matter did appear before the Court for hearing and  

the  respondents  duly  filed  their  counter  in  the  matter.  In  the  

counter affidavit it appears that the respondent duly pointed out  

that the appellant duly participated in the process of allotment  

and had been unsuccessful,  hence, filed the present appeals to  

the limited extent that the impugned order while allowing the writ  

petition,  did  not  direct  allotment  of  a  plot  in  favour  of  the  

appellant because the appellant’s claim was more meritorious. It  

is stated that allotment of a plot in favour of the appellant could  

not  be  made  by  the  High  Court  and,  furthermore,  without  

explaining the inordinate delay, the appeal has been filed by the  

appellant. It is further pointed out that the appellant was a party in  

the  case  of  Haryana  Urban  Development  Authority  vs.  Delhi   

Assam Roadways  Corporation  & Ors.  being  SLP [C]  Nos.10818-

10823 of 2008. It is pointed out that since the appellant was a  

contesting party before this Court wherein a batch of petitions had  

been decided, the appellant cannot challenge the same again by  

way  of  the  present  appeals.  It  is  further  pointed  out  that  the  

impugned order of the High Court did not direct allotment of plot  

in favour of the appellant, neither alleges that the criteria adopted  

for allotment of plots was arbitrary nor challenges the criteria but  

8

Page 9

merely  seeks  the  benefit  of  allotment  of  a  plot  despite  being  

unsuccessful. This Court by the final order dated April  29, 2011  

clarified  that  the  allotments  already  made  in  favour  of  other  

respondents should not be interfered with. It is further stated that  

the  appellant  is  now  estopped  from  contending/contesting  the  

claim since the claim is barred by res judicata. Since challenge to  

the impugned order of the High Court has already been decided  

by this Court, the appellant cannot challenge the same.           

6. It  is  submitted  that  the  appellant  was  not  found  eligible  for  

allotment as per the Selection Committee and hence no plot was  

allotted  to  it.  The appellant  without  challenging  the  process  of  

allotment is merely seeking a direction for allotment of plot in its  

favour which cannot be acceded to. In these circumstances, the  

learned  senior  counsel  appearing  on  behalf  of  the  respondent  

authority, HUDA, submitted that no order can be passed on these  

petitions on the ground of res judicata,  and further the appellant  

did not challenge the process of allotment. In reply, it was stated  

that the appellant was a party in the earlier SLP [C] Nos. 10818-

10823 of 2008 as respondent No.26. According to the appellant,  

no notice was received in the same.

9

Page 10

7. We  have  heard  learned  counsel  for  the  parties  at  length.  It  

appears to us that the appellant was an unsuccessful party in the  

initial  allotment.  It  is  also not disputed that the earnest money  

deposited by it was also refunded. The initial allotment was also  

set aside by judgment dated March 13, 2008 but the same did not  

give any right to the appellant to claim allotment as a matter of  

right.

8. This Court in  Manjul Srivastava vs. Government of Uttar Pradesh  

[(2008) 8 SCC 658], while disallowing a claim for allotment made  

on  the  basis  that  there  was  a  “plot  reserved”,  held  that  “the  

appellant could not have acquired any legal right for allotment of   

a plot until and unless she could be found to be successful in the   

draw of lots.”  In  Haryana State Agricultural Marketing Board vs.   

Sadhu Ram [(2008) 16 SCC 405], this Court in a matter where the  

allotment by way of  auction was cancelled on the ground that the  

reserve price was not met, held regarding the claim of allotment  

by the highest bidder that:  

“It is, therefore, difficult to accept the views expressed by  the High Court that since reserve price was not known to  the respondents and they were found to be the highest  bidders in the said auction, they have acquired a right to  get the allotment of alternative plots and the appellants  had no authority to reject the highest offers given by the  

10

Page 11

respondents or to cancel the auction itself. Since the entire  auction was cancelled, we do not find any justification how  the High Court could pass an order directing allotment of  the  alternative  plots  on  the  same terms  and conditions  when, after cancellation, the second auction was held in  which the price fetched was much higher than the offers  made by the respondents.”  

Therefore, when no right arises to an applicant in a vitiated/cancelled  

allotment procedure, a subsequent claim for allotment may or may  

not succeed, depends upon the factual circumstances of each case.

9. We have also noticed that in A. Jithendernath v. Jubilee Hills Coop.   

House Building Society [(2006) 10 SCC 96, at page 114], while  

deciding a dispute regarding allotment, this Court held that :

“Even in exercise of its jurisdiction under Article 142 of the  Constitution  while  making  an  attempt  to  do  complete  justice to the parties this Court cannot pass an order which  could cause injustice to others and in particular to those  who are not before it.”

We have noticed that in  Industrial Assistance Group, Goverment of   

Haryana & Anr. vs. Ashutosh Ahluwalia & Anr.  [(2001) 4 SCC 359],  

the  respondent  was  allotted  land,  however  the  allotment  process  

was cancelled on the basis that plots allotted could only be sold by  

open auction.  Subsequently,  the allotment  to  the respondent was  

cancelled and the earnest money was returned. The Court was of the  

11

Page 12

opinion that he can be allotted a plot under the new policy, however,  

as in his case the allotment process was complete, he was not asked  

for the difference in rates as paid by the earlier allottees. In  U.G.  

Hospitals (P) Ltd. v. State of Haryana [(2011) 14 SCC 354], there was  

an irregular allotment of a plot for construction and the appellant  

filed a writ challenging the same after a delay of one and half years.  

Apart  from  the  appellant,  there  were  other  applicants  for  the  

allotment  of  land  as  well,  however,  all  barring  the  appellant  and  

another person had withdrawn their applications.  Since the other  

applicant was allotted a plot,  this Court held that as there was a  

delay, it would not interfere with the earlier allotment.  However, as  

the appellant was willing to accept another plot, the Court directed  

the Authority to consider the request of the appellant on such terms  

as it deems fit, as per its rules and regulations in accordance with  

law.

10. We have  noticed  that  in  SLP  [C]  Nos.10818-23  of  2008  –  

Haryana  Urban  Development  Authority  etc.  vs.  Delhi  Assam  

Roadways  Corporation  Ltd.  &  Ors. where  this  Court  issued  a  

direction directing the Authority to allot Plot No.55-P, Sector 44  

(Institutional), Gurgaon to Delhi Assam Roadways Corporation Ltd.  

within four weeks from the date of the order, i.e., 29th April, 2011.  

12

Page 13

It appears that the said order was passed by this Court since the  

learned Additional Solicitor General, on instructions, who appeared  

on behalf of HUDA, conceded to the effect that half an acre of plot  

No.55-P, Sector 44 (Institutional), as far as possible, shall be made  

available  to  Delhi  Assam  Roadways  Corporation  Ltd..  The  said  

order was passed on concession granted on behalf of HUDA. But it  

appears that in view of the facts and circumstances of this case  

and  the  submissions  made  on  behalf  of  respondents,  the  

respondent did not agree to concede it to that extent in this case.  

Accordingly, in our opinion, there is a distinction in the situation in  

passing the said order and the present order so passed by us.  

11. Accordingly, in this factual matrix and the law laid down by  

this Court, we hold that the right of the appellant has not been  

crystallised. No right can be conferred on the appellant, granting  

allotment  as  has  been  prayed  before  us.  In  our  opinion,  the  

appellant  has to comply with the process followed by HUDA to  

allot plots in favour of the allottees and, accordingly,  we direct  

that if the appellant fulfils all the criteria laid down by HUDA in the  

process  of  allotment,  HUDA  shall  consider  its  case  for  such  

allotment. In these facts and circumstances we direct that steps  

be taken by the appellant in accordance with the process of HUDA  

13

Page 14

and if the criteria is being fulfilled by the appellant, HUDA shall  

take necessary steps in the matter for  allotment in accordance  

with the provisions of law.

12. In light of the above, the appeals are disposed of accordingly.

.....……………………..J.         (Surinder Singh Nijjar)

New Delhi;                                                                 ..... …………………….J. February 25, 2014.                                      (Pinaki Chandra  Ghose)

14