Supreme Court of India
THE BIHAR STATE HOUSING BOARD & ORS.versusRADHA BALLABH HEALTH CARE AND RESEARCH INSTITUTE (P) LTD.
- Citation
- 2019 INSC 1031
- Decided
- 13 September 2019
- Disposal
- Appeal(s) allowed
- Bench
- L NAGESWARA RAO
Holding
A response to an advertisement does not confer any legal right to allotment of public land, and once the price is accepted, the respondent is estopped from disputing it; consequently, the High Court’s order directing a proportionate price is set aside.
Summary
The Bihar State Housing Board advertised a plot for a health centre, but the sole applicant, Radha Ballabh Health Care & Research Institute, was not allotted the advertised plot. After several writ petitions, the High Court directed the Board to consider the institute’s claim and to fix a price proportionate to the advertised plot. The Board instead allotted two smaller plots without a fresh advertisement, and the institute paid the price on three occasions, later disputing the price. The Supreme Court held that merely responding to an advertisement does not create a legal right to allotment, that public land cannot be disposed of without a transparent advertisement, and that once the institute accepted the price, it is estopped from contesting it. The Court set aside the High Court’s order directing a proportionate price, upheld the Board’s price fixation, and allowed the appeal, noting that the allotment cannot be cancelled after the hospital was constructed.
Issues considered
- The response to an advertisement creates any entitlement to allotment of public land.
- Whether the Board can allot plots without a fresh advertisement and in a non‑transparent manner.
- Whether the price fixed by the Board is arbitrary and can be challenged after acceptance.
- The legality of the High Court’s direction to charge a proportionate price to the advertised plot.
- Whether the allotment can be cancelled after the respondent has constructed a hospital.
- The requirement of fairness and equality under Article 14 in fixation of price for public property.
Subjects
public propertyland allotmentadvertisementequalityArticle 14Article 142price fixationestoppelstate authoritytransparencynon‑discriminatory
Judgment
444 [2019]
SUPREME COURT 12 S.C.R. 444
REPORTS [2019] 12 S.C.R.
A THE BIHAR STATE HOUSING BOARD & ORS.
v.
RADHA BALLABH HEALTH CARE AND RESEARCH
INSTITUTE (P) LTD.
B (Civil Appeal No. 7243 of 2019)
SEPTEMBER 13, 2019
[L. NAGESWARA RAO AND HEMANT GUPTA, JJ]
Public property: Allotment of plot – Advertisement of plot for
health center by appellant – Respondent even though being the
C
sole applicant not allotted plot – Challenge to – In a writ petition,
direction by the High Court to the appellant to consider respondent’s
application – Appellant allotted two plots without any advertisement,
in lieu of the plot advertised earlier – Respondent paid the amount
demanded by the appellant – Thereafter, writ petition by the
D respondent disputing the allotment price which was allowed by the
Single Judge of the High Court – Said order upheld – On appeal,
held: Response to an advertisement does not lead to any obligation
on the appellant to allot any plot – Mere fact that the respondent
had applied for allotment of a plot does not confer any legal or
equitable right to seek allotment of any plot – Appellant was more
E
than indulgent in allotting two plots without any advertisement –
Public property could not be disposed of without any advertisement
and without giving opportunity to eligible persons to apply and
seek consideration of allotment of public property in a transparent
and non-discriminatory manner – Thus, the allotment of two plots,
F on the basis of direction given by the High Court to consider the
claim of the respondent, is against the public interest – However,
the respondent has constructed hospital which is operational thus,
the allotment cannot be cancelled – Action of the respondent to
dispute the allotment price after accepting the price is neither fair
nor reasonable and cannot be accepted – Appellant as a State is
G
required to act fairly in fixation of price for allotment of a plot –
Order of the High Court to direct the appellant to charge the price
proportionate to the price advertised earlier has no legal basis and
is set aside.
H
444
THE BIHAR STATE HOUSING BOARD v. RADHA BALLABH HEALTH 445
CARE AND RESEARCH INSTITUTE (P) LTD.
Allowing the appeal, the Court A
HELD: 1.1 The respondent does not get any right of
allotment of a plot merely because it has applied for allotment
earlier. The response to an advertisement does not lead to any
obligation on the appellant to allot any plot. Admittedly, there
was no allotment in pursuance of the offer submitted by the B
respondent. Mere fact that the respondent had applied for
allotment of a plot does not confer any legal or equitable right to
seek allotment of any plot. The appellant was more than indulgent
in allotting two plots of 24000 sq. feet without any advertisement
advertising such plots merely on the basis of the fact that the
respondent had applied for allotment at an earlier stage in respect C
of another plot. The public property could not be disposed of
without any advertisement and without giving opportunity to
eligible persons to apply and seek consideration of allotment of
public property in a transparent and non-discriminatory manner.
[Para 25, 26] [456-E-G] D
1.2 The very allotment of two plots, on the basis of direction
given by the High Court to consider the claim of the respondent,
is against the public interest. However, the fact remains that after
allotment, the respondent has constructed hospital which is
operational therefore; it is too late in the day to cancel the E
allotment of the plot allotted to the respondent. [Para 27]
[457-A-B]
1.3 The respondent has accepted the price on three
occasions; firstly on March 21, 2014, then on April 2, 2014
whereby, the respondent remitted a sum of Rs.40 lakhs by two F
cheques as well. The respondent has accepted the payment
schedule but subject to final measurements of plots. It is
thereafter the letter of allotment was issued on December 11,
2014. Thirdly, the respondent remitted another sum of
Rs.1,71,00,000/- vide three separate cheques in January, 2015
so as to complete 20% of the interim price of letter of allotment G
dated December 11, 2014. It is thereafter an agreement was
executed on March 12, 2015 unequivocally and categorically
accepting the offer of the appellant. It was not open to the
respondent to dispute the price of allotment offered by the
H
446 SUPREME COURT REPORTS [2019] 12 S.C.R.
A appellant. The respondent is estopped to dispute the allotment
price in these circumstances. [Para 28] [457-C-D]
1.4 The appellant as a State is required to act fairly in fixation
of price for allotment of a plot. The order of the High Court to
direct the appellant to charge the price proportionate to the price
B advertised earlier has no legal basis. It is a commercial decision
taken by the appellant fixing the price of the plot. In the matter
of fixation of price, the Board has a right to fix such price, more
so, when such price was accepted by the respondent on three
different occasions. The action of the respondent to dispute the
allotment price after accepting the price is neither fair nor
C reasonable and cannot be accepted. [Para 30, 31] [457-C-D]
1.5 Keeping in view the cause of allotment of plot i.e.
hospital, in exercise of jurisdiction under Article 142 of the
Constitution, that the interest for the period from the date of
filing of the writ petition before the High Court till the date of
D order of this Court shall not be charged from the respondent
provided respondent pays the entire balance sale consideration
in terms of the condition of allotment within the stipulated period.
[Para 32] [459-A-B]
1.6 The order of the High Court is not sustainable in law,
E thus, the order is set aside. [Para 33] [459-C]
Akhil Bhartiya Upbhokta Congress v. State of Madhya
Pradesh & Ors. (2011) 5 SCC 29 : [2011] 5 SCR 77 ;
Institute of Law, Chandigarh & Ors. v. Neeraj Sharma
& Ors. (2015) 1 SCC 720 : [2014] 11 SCR 1096 ;
F Meerut Development Authority v. Association of
Management Studies & Anr. (2009) 6 SCC 171 : [2009]
6 SCR 663 ; Uttar Pradesh Housing and Development
Board v. Ramesh Chandra Agarwal (2019) 6 SCC
554 ; Style (Dress Land) v. Union Territory, Chandigarh
G & Anr. (1999) 7 SCC 89 : [1999] 1 Suppl. SCR 591
- referred to.
H
THE BIHAR STATE HOUSING BOARD v. RADHA BALLABH HEALTH 447
CARE AND RESEARCH INSTITUTE (P) LTD.
Case Law Reference A
[2011] 5 SCR 77 referred to Para 22
[2014] 11 SCR 1096 referred to Para 23
[2009] 6 SCR 663 referred to Para 24
(2019) 6 SCC 554 referred to Para 29 B
[1999] 1 Suppl. SCR 591 referred to Para 32
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7243
of 2019.
From the Judgment and Order dated 21.11.2017 of the High C
Court of Judicature at Patna in L.P.A. No. 229 of 2017 in C.W.J.C. No,
17694 of 2015.
Ranjit Kumar, Sr. Adv., Shivam Singh, Jaideep Khanna, Gopal
Singh, Advs. for the Appellants.
Neeraj Kishan Kaul, Sr. Adv., Amit Kumar Singh, Mrs. E. Enatoli D
Sema, Chanan Parwani, Gaurav Prakash, Advs. for the Respondent.
The Judgment of the Court was delivered by
HEMANT GUPTA, J. 1. Leave granted.
2. The challenge in the present appeal is to an order passed by the E
Division Bench of the High Court of Judicature at Patna on November
21, 2017, whereby, the Letters Patent Appeal against an order passed
by the learned Single Bench on September 19, 2016 was dismissed.
3. The appellant published an advertisement on May 10, 2008
inviting applications for allotment of plot for health center in Lohia Nagar F
Housing Colony, Patna measuring 43000 sq. feet at the price of
Rs.1,71,89,057/-. Rs.1,00,000/- was the earnest money. The respondent
applied for such plot along with the amount of earnest money. It was
mentioned in the advertisement that upon receipt of more than one
application, allotment shall be made by draw of lots and that the G
Chairman-cum-Managing Director of the appellant has the power to
cancel allotment without assigning any reason. The respondent herein
was the sole applicant for seeking allotment of plot advertised for health
center but no such plot was allotted to the respondent, may be for the
reason that the respondent being the sole applicant.
H
448 SUPREME COURT REPORTS [2019] 12 S.C.R.
A 4. The respondent filed writ petition before the High Court in the
year 2009 challenging the action of the appellant in not accepting the
application of the respondent for the reason that it had not submitted the
documents of recognition from the State Government. In view of the
stand taken, the High Court directed the appellant to take a decision on
the application of the respondent within a period of one month.
B
Subsequently, contempt petition was filed wherein; the Court was
informed that the request of the respondent for allotment of plot was not
accepted. The respondent was given liberty to challenge the decision of
the appellant by way of a fresh writ petition.
5. The respondent again filed writ petition before the High Court
C contending that the respondent approached the Managing Director of
the appellant, who agreed to the proposal of allotment of alternative
plots for construction of hospital in lieu of original plot offered, though
with much less area than the plot advertised earlier. The respondent
submitted the technical and financial proposal also stating that the plot,
D which was advertised, was of an area of 43000 sq. feet for a consideration
of Rs. 1,71,89,057/-, thus, there should be proportionate reduction of
price on account of lesser area being offered. The respondent sought
allotment on the terms and conditions of the advertisement itself. The
two plots offered as alternative to the earlier plot, were plot nos. G-5
and G-6 measuring an area of 10,000 sq. feet and 14000 sq. feet
E respectively situated near Rajendra Nagar Over Bridge in Patna.
However, the Board took a decision to allot the aforesaid plots on the
basis of Swiss Challenge Method. The said decision was communicated
to the respondent on December 14, 2011.
6. The said writ petition was decided on May 10, 2013 holding
F that the advertisement cannot be given a go by adopting a method of
allotment other than what was described in the advertisement. As such,
Swiss Challenge Method cannot be applied in the case of the respondent.
However, change of plot was not interfered with in view of the fact that
the respondent agreed for the offered plots. The appellant was directed
G to consider issuing an allotment letter in favour of the respondent in
terms of the advertisement but with respect to plot Nos. G-5 and G-6 in
place of the original plot, as mentioned in the advertisement, on the same
terms and conditions with proportionate cost reduction on account of the
area of the plots having been reduced. The High Court passed the
following order:
H
THE BIHAR STATE HOUSING BOARD v. RADHA BALLABH HEALTH 449
CARE AND RESEARCH INSTITUTE (P) LTD. [HEMANT GUPTA, J.]
“In view of the reasons and discussions made above, the decision A
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
B
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 C
and conditions with proportionate cost on account of the area of
the plots being reduced.”
7. Such order was modified at the instance of the appellant on
January 9, 2014 that in view of the condition in the advertisement that if
the allotment letter is issued after May 31, 2008, the price of the allotted D
plot will be on the updated rates as on the date of allotment. The Court
held as under:
“It is submitted that advertisement states that if the allotment letter
is issued after 31st May, 2008 the price of the allotted plot would
be on updated rate as on the date of allotment as per the terms of E
advertisement contained in Annexure-1 to the writ application.
The order dated 10.05.2013 passed in CWJC No. 9947 of 2012 is
clarified to the above extent. After such clarification it goes
without saying that the Board upon considering the letter dated
3rd January 2012 written by the petitioner is to issue the allotment
letter, and as such, the same be issued within a period of two F
months from today.”
8. It is thereafter on February 14, 2014, the respondent was called
upon to deposit up to date price of Rs.13,09,95,041/-. The said price
was not deposited by the respondent, instead respondent replied vide
letter dated February 19, 2014 that the said demand is contrary to the G
direction issued by the High Court and requested the Board to calculate
the updated price as per the terms and conditions.
9. On March 13, 2014, the appellant revised price to
Rs.10,58,91,736/- and raised demand for payment of such amount to be
H
450 SUPREME COURT REPORTS [2019] 12 S.C.R.
A deposited by March 31, 2014. In response to such communication, the
respondent on March 21, 2014 communicated its acceptance. The said
communication reads as under:
“With reference to your letter No. 1902 dated 13/3/2014 directing
us to deposit Rs.10,58,91,736.00 for plot no. GC 5, GC 6,
B Kankarbagh Patna allotted to Radha Ballabh Health Care &
Research Institute Pvt. Ltd.
We need to inform you that the Board may measure the exact
Area of the Land to be delivered before the Representatives of
both sides and thereafter handover the vacant possession of the
C land erecting boundary wall, the cost of which shall be borne by
us.
The amount (money), directed to be deposited for the said plot
is against the directions of the Hon’ble High Court Patna. We
have raised this issue of price in our letter dt. 19/02/2014 however
D subject to our right and without prejudice, we are ready to take
the land (Plt no. GC 5 & GC 6) Under protest.
We propose the following payment plan.
We will deposit a token advance of Rs. 40 lakhs at the outset.
Once we get vacant possession of the land, with boundary wall
E erected (the cost of which will borne by us) we will deposit up to
20% of the total cost (subject to final measurement of the Land).
The remaining amount will be paid in Four Quarterly Installments
per annum in three years. Once again we would emphasize that
if we do not get the vacant possession of the land within two (2)
F months of token advance deposit, the Housing Board shall be
held responsible and will have to bearing bank interest levied on
us by the bank/borrower.
Kindly approve our proposal at the earliest and let us know your
bank with account number, so that we can proceed with the
G payment process.”
10. Again, the appellant sought the consent of the respondent on
April 1, 2014 seeking advance payment of Rs.40,00,000/- and that the
balance payment of Rs.8,47,93,330/- was payable in 12 quarterly
installments in three years. The communication of the appellant reads
H as under:
THE BIHAR STATE HOUSING BOARD v. RADHA BALLABH HEALTH 451
CARE AND RESEARCH INSTITUTE (P) LTD. [HEMANT GUPTA, J.]
“Reference:- Yours letter no.-zero dated 21.03.2014. A
Sir,
Review is made of your letter regarding aforesaid subject. In
course of review for the payment, following payment list is
prepared.
B
(a) Total price on the date 31.03.2014 – Rs. Illegible.
(b) Advance payment – Rs.40,00,000/-
(c) Earlier deposited earnest amount-Rs.1,00,000/-
(d) 20 percent of total amount-Rs.2,11,98,400/-
C
(e) Deducted advance payment and earnest amount-
Rs.41,00,000/-
(f) Rest preliminary amount to be deposited prior to deed of
agreement – Rs.1,70,98,400/-
(g) Rest amount of the Price-Rs.8,47,93,330/- D
(h) Amount of instalment payable in 12 quarterly instalments in
three years-
(i) Normal with interest @14% Rs.87,74,750/-
(ii) By delay with interest @18% Rs.92,98,962/- E
So if you are willing for the allotment in question, please give
your consent on aforementioned schedule, otherwise it shall be
deemed that you are not willing for the allotment.”
11. The respondent communicated on April 2, 2014 accepting the
F
payment schedule under protest subject to final measurements of the
plot. Such communication reads as under:
“Ref: Housing Board’s Letter No. 2445 Dated 01/04/2014
Dear Sir,
Received the Board’s aforesaid Letter regarding the payment G
schedule for plot No. GC 5 & GC 6, Kankarbagh, Patna.
As stated earlier and in the light of our letter dt. 21/03/2014, we
accept the payment schedule, under Protest subject to the final
measurement of the plots.
H
452 SUPREME COURT REPORTS [2019] 12 S.C.R.
A We are enclosing herewith two Banker ’s cheques of
Rs.40,00,000/- (Rs. Forty Lacs),
1. Banker’s Cheque no. 021879 for Rs.20,00,000/- (Rs.Twenty
Lacs) and
2. Banker Cheque No. 021880 of Rs.20,00,000/- (Rs.Twenty
B Lacs) Drawn at Patna dated 02/04/2014 as advance payment.
Please ensure the possession of Plot/Land, with boundary wall
erected (at our cost) at its earliest.”
12. It is thereafter, a formal letter of allotment was issued on
C December 11, 2014 acknowledging that Rs.41 lakh stand deposited and
that 20% of the interim price of the land amounting to Rs.2,11,98,400/-
be paid within thirty days. Such amount was paid by the respondent. It
is thereafter, an Agreement was executed on March 12, 2015 between
the appellant and the respondent. Thus, a concluded contract came into
existence with deposit of the amount demanded by the appellant and
D paid by the respondent.
13. After accepting the allotment on the price as per the
communication referred to above, the respondent filed a writ petition
disputing the allotment price. The learned Single Bench allowed the
writ petition on the basis that proportionate price of the plot advertised in
E Lohia Nagar alone can be claimed by the appellant.
14. The High Court has sought the basis of fixation of price of the
plot during the proceedings before it. The proportionate price claimed
by the appellant was found to be arbitrary. The High Court, vide order
dated September 19, 2016, issued the following directions:
F
“In my considered view, only that procedure could have been
followed for updation of price of allotment. Thus, it is held that
the Board has acted in arbitrary manner in fixing the price of the
plots concerned due to which the petitioner has been fastened
with a liability to pay a price several times higher than which
G could have been charged. It has also to be kept in mind that due
to the delay caused by the Board, the allotment could not be
finalized on the date fixed. Accordingly, this writ petition is allowed.
The price fixed by the Board is quashed and set aside. The Board
is directed to re-calculate the cost of the plots of the petitioner in
accordance with the procedure adopted under Annexure H
H
THE BIHAR STATE HOUSING BOARD v. RADHA BALLABH HEALTH 453
CARE AND RESEARCH INSTITUTE (P) LTD. [HEMANT GUPTA, J.]
appended with the counter affidavit within a period of three months A
from the date of receipt/production of a copy of this order and
return the excess amount, if any, having been paid by the petitioner
in terms of the calculation done by the Board. If the same is not
done within the aforesaid period of three months, the petitioner
would be entitled for interest @14% per annum on the said amount
B
to be calculated from the date of expiry of the aforesaid period of
three months till Patna High Court CWJC No.17694 of 2015 dt.19-
09-2016 20/20 the date of final payment.”
15. In terms of the directions of the High Court, the appellant has
paid back a sum of Rs.3,31,94,435.53.
C
16. It is the said order of the learned Single Judge, which was
affirmed in the Letters Patent Appeal, on the ground that the Board
could only claim up to date rate and not the market rate as claimed in the
letter of allotment.
17. The respondent in the counter affidavit in the present appeal D
has referred to the decision taken by the appellant in its 193rd Meeting
dated February 10, 2000 on the basis of which office order was issued
on March 2, 2001 to fix reserve price for the purpose of auction of the
Plots/Houses/Flats. The decision is as under:
“(i) The auction price of such Plots/Houses/Flats, having taken E
within one last preceding year.
(ii) The updated price of the Commercial rate fixed by the Board.
(iii) The rate prescribed by the Collector for the purpose of
Registration.
F
In addition to this the Managing Director of the Bihar State
Housing Board was authorized to have discretion keeping the
place, time and circumstances.”
18. It is also pointed out that on June 13, 2013, the market value
was determined for calculation of premium for the Financial Year 2013-
2014 and that on the basis of such calculation, the price of the plot allotted G
has been fixed.
19. Mr. Ranjit Kumar, learned senior counsel for the appellant,
argued that the decision of the Appellant is based upon rational basis in
terms of the decision of the Board taken earlier. It is argued that after
H
454 SUPREME COURT REPORTS [2019] 12 S.C.R.
A accepting the offer of allotment and paying initial amount, the respondent
is estopped to dispute the allotment price.
20. The argument of Mr. Neeraj Kishan Kaul, learned senior
counsel appearing for the respondent, is that the advertisement inviting
applications for allotment of plot contemplated charging of up to date
B cost/price which is not the same as market price, therefore, the appellant
cannot charge market price of the plot. It was argued that the decision
of June 13, 2013 is in respect of sale of the plot by the allottee to third
person so as to pay 50% of the market value to the appellant. Therefore,
such decision has rightly not been accepted by the High Court. It is also
argued that office order dated March 2, 2001 deals with fixation of reserve
C price in the event of decision of the Board to auction the plot. Therefore,
the High Court has rightly fixed price of the plot on the basis of calculations
given by the appellant alone. Thus, the order of the High Court does not
warrant any interference in an appeal under Article 136 of the Constitution
of India.
D 21. We find that the entire approach of the High Court is erroneous
and not sustainable. Plot Nos. G-5 and G-6 located in Rajinder Nagar
Over Bridge were never advertised. The allotment of the alternative
plots was made by the appellant in lieu of the plot advertised in Lohia
Nagar, Kankarbagh, Patna measuring 43000 sq. feet. The location and
E the size of the alternative plots are different.
22. Firstly, we need to examine as to whether, the appellant could
allot plots without advertisement. This Court in a judgment in Akhil
Bhartiya Upbhokta Congress v. State of Madhya Pradesh & Ors.1
deprecated the practice of allotment of plots dehors an invitation or
F advertisement by the State or its instrumentalities. The Court held as
under:
“66. We may add that there cannot be any policy, much less, a
rational policy of allotting land on the basis of applications made
by individuals, bodies, organisations or institutions dehors an
G invitation or advertisement by the State or its agency/
instrumentality. By entertaining applications made by individuals,
organisations or institutions for allotment of land or for grant of
any other type of largesse the State cannot exclude other eligible
persons from lodging competing claim. Any allotment of land or
1
(2011) 5 SCC 29
H
THE BIHAR STATE HOUSING BOARD v. RADHA BALLABH HEALTH 455
CARE AND RESEARCH INSTITUTE (P) LTD. [HEMANT GUPTA, J.]
grant of other form of largesse by the State or its agencies/ A
instrumentalities by treating the exercise as a private venture is
liable to be treated as arbitrary, discriminatory and an act of
favouritism and/or nepotism violating the soul of the equality clause
embodied in Article 14 of the Constitution.
67. This, however, does not mean that the State can never allot B
land to the institutions/organisations engaged in educational,
cultural, social or philanthropic activities or are rendering service
to the society except by way of auction. Nevertheless, it is
necessary to observe that once a piece of land is earmarked or
identified for allotment to institutions/organisations engaged in any
such activity, the actual exercise of allotment must be done in a C
manner consistent with the doctrine of equality. The competent
authority should, as a matter of course, issue an advertisement
incorporating therein the conditions of eligibility so as to enable all
similarly situated eligible persons, institutions/organisations to
participate in the process of allotment, whether by way of auction D
or otherwise. In a given case the Government may allot land at a
fixed price but in that case also allotment must be preceded by a
wholesome exercise consistent with Article 14 of the Constitution.”
23. In another judgment in Institute of Law, Chandigarh & Ors.
v. Neeraj Sharma & Ors.2, this Court upheld the order of the High E
Court setting aside allotment of land in favour of the appellant institute
without giving any public notice and in the absence of a transparent
policy and any objective criteria.
24. Further, in Meerut Development Authority v. Association of
Management Studies & Anr.3, this Court held that a tender is an offer. F
It is an invitation to seek communication to convey acceptance. This
Court held as under:
“26. A tender is an offer. It is something which invites and is
communicated to notify acceptance. Broadly stated it must be
unconditional; must be in the proper form, the person by whom G
tender is made must be able to and willing to perform his
obligations. The terms of the invitation to tender cannot be open
to judicial scrutiny because the invitation to tender is in the realm
2
(2015) 1 SCC 720
3
(2009) 6 SCC 171
H
456 SUPREME COURT REPORTS [2019] 12 S.C.R.
A of contract. However, a limited judicial review may be available
in cases where it is established that the terms of the invitation to
tender were so tailor-made to suit the convenience of any particular
person with a view to eliminate all others from participating in the
bidding process.
B 27. The bidders participating in the tender process have no other
right except the right to equality and fair treatment in the matter
of evaluation of competitive bids offered by interested persons in
response to notice inviting tenders in a transparent manner and
free from hidden agenda. One cannot challenge the terms and
conditions of the tender except on the abovestated ground, the
C reason being the terms of the invitation to tender are in the realm
of the contract. No bidder is entitled as a matter of right to insist
the authority inviting tenders to enter into further negotiations unless
the terms and conditions of notice so provided for such negotiations.
28. It is so well settled in law and needs no restatement at our
D hands that disposal of the public property by the State or its
instrumentalities partakes the character of a trust. The methods
to be adopted for disposal of public property must be fair and
transparent providing an opportunity to all the interested persons
to participate in the process.”
E 25. Therefore, the respondent does not get any right of allotment
of a plot merely because it has applied for allotment earlier. The response
to an advertisement does not lead to any obligation on the appellant to
allot any plot. Admittedly, there was no allotment in pursuance of the
offer submitted by the respondent. Mere fact that the respondent had
F applied for allotment of a plot does not confer any legal or equitable right
to seek allotment of any plot.
26. The appellant was more than indulgent in allotting two plots of
24000 sq. feet without any advertisement advertising such plots merely
on the basis of the fact that the respondent had applied for allotment at
G an earlier stage in respect of another plot. The public property could not
be disposed of without any advertisement and without giving opportunity
to eligible persons to apply and seek consideration of allotment of public
property in a transparent and non-discriminatory manner.
H
THE BIHAR STATE HOUSING BOARD v. RADHA BALLABH HEALTH 457
CARE AND RESEARCH INSTITUTE (P) LTD. [HEMANT GUPTA, J.]
27. Therefore, the very allotment of two plots, on the basis of A
direction given by the High Court to consider the claim of the respondent,
is against the public interest. However, the fact remains that after
allotment, the respondent has constructed hospital which is operational
therefore; it is too late in the day to cancel the allotment of the plot
allotted to the respondent.
B
28. The question raised before the High Court was whether the
appellant is entitled to updated price or the market price. We find that
such discussion by the High Court is totally irrelevant inasmuch as the
respondent has accepted the price on three occasions; firstly on March
21, 2014, then on April 2, 2014 whereby, the respondent remitted a sum
of Rs.40 lakhs by two cheques as well. The respondent has accepted C
the payment schedule but subject to final measurements of plots. It is
thereafter the letter of allotment was issued on December 11, 2014.
Thirdly, the respondent remitted another sum of Rs.1,71,00,000/- vide
three separate cheques in January, 2015 so as to complete 20% of the
interim price of letter of allotment dated December 11, 2014. It is D
thereafter an agreement was executed on March 12, 2015 unequivocally
and categorically accepting the offer of the appellant. It was not open
to the respondent to dispute the price of allotment offered by the appellant.
The respondent is estopped to dispute the allotment price in these
circumstances.
E
29. Recently, in a judgment of this Court in Uttar Pradesh Housing
and Development Board v. Ramesh Chandra Agarwal4, the appeal
was allowed against an order passed by the National Consumer Disputes
Redressal Commission for allotment of a plot for the reason that the
complainant has applied for allotment of a plot way back in 1982. It was
held that there was no contractual entitlement for allotment of a flat at a F
specified price. The Court held as under:
“13. The appellant is governed by the terms and conditions
advertised in its Registration Booklet and by the 1979 Rules. Clause
5 of the Registration Booklet indicates that mere registration does
not confer a right for allotment. Rule 15 makes a provision to the G
effect that the Board is not bound to allot a house or plot to every
registered holder. Rule 30 indicates that after the Board advertises
the availability of a scheme in the newspaper, every registered
4
(2019) 6 SCC 554
H
458 SUPREME COURT REPORTS [2019] 12 S.C.R.
A applicant is at liberty to submit a consent letter for participation in
the draw of lots. Mere registration does not oblige the authority to
include every registered applicant in the draw of lots. The applicant
must show readiness and willingness to participate in a draw of
lots in respect of a specified scheme. This is evident from Rule
30(2). A set of priorities is provided in Rule 30(5). In view of the
B
clear position in the brochure and the 1979 Rules, the respondent
had no vested right to seek an allotment. As a registered applicant,
the respondent was at liberty to seek to participate in the draw of
lots by indicating his consent to the appellant. After paying an
initial sum of Rs 500 in 1982 and a further sum of Rs 500 in 1985,
C the respondent did not pursue any remedies until 1993 when he
moved the District Forum. The order of the District Forum gave
liberty to the respondent to seek allotment at the current market
value under any of the schemes of the appellant. NCDRC was
manifestly in error in issuing a direction to the appellant to make
an allotment to the respondent for a total sum of Rs 2,50,000 in
D
any of the flats available in the Mandola Vihar Yojna, Ghaziabad.
There is no rational basis or justification for the amount of Rs
2,50,000 which has been fixed by NCDRC. This direction proceeds
purely on the basis of the ipse dixit of the forum. The appellant, as
a public authority, could not have been compelled to enter into a
E contract with the respondent. There was no contractual entitlement
of the respondent to the allotment of a flat much less for an
allotment at a specified price. In its effort to render
justice, NCDRC has adopted a view which is contrary to the basic
principles of contract governing the law on the subject.”
F (emphasis supplied)
30. The appellant as a State is required to act fairly in fixation of
price for allotment of a plot. The order of the High Court to direct the
appellant to charge the price proportionate to the price advertised earlier
has no legal basis. It is a commercial decision taken by the appellant
G fixing the price of the plot. In the matter of fixation of price, the Board
has a right to fix such price, more so, when such price was accepted by
the respondent on three different occasions as mentioned above.
31. The action of the respondent to dispute the allotment price
after accepting the price is neither fair nor reasonable and cannot be
H accepted.
THE BIHAR STATE HOUSING BOARD v. RADHA BALLABH HEALTH 459
CARE AND RESEARCH INSTITUTE (P) LTD. [HEMANT GUPTA, J.]
32. In terms of judgment of this Court in Style (Dress Land) v. A
Union Territory, Chandigarh & Anr.5, the appellant is entitled to the
allotment price along with interest on the delayed payment even if there
is stay by the Court. But, keeping in view the cause of allotment of plot
i.e. hospital, we order, in exercise of our jurisdiction under Article 142 of
the Constitution, that the interest for the period from the date of filing of
B
the writ petition before the High Court till the date of order of this Court
shall not be charged from the respondent provided respondent pays the
entire balance sale consideration in terms of the condition of allotment
within six months from today.
33. In view of the above, we find that the order of the High Court
is not sustainable in law, thus, the order is set aside. The appeal is C
accordingly allowed.
Nidhi Jain Appeal allowed.
D
E
F
G
5
(1999) 7 SCC 89 H
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