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CASE NO.: Appeal (civil)  5402 of 2004

PETITIONER: Anil Kumar Srivastava

RESPONDENT: State of U.P. & Another

DATE OF JUDGMENT: 20/08/2004

BENCH: ASHOK BHAN & S.H. KAPADIA

JUDGMENT: J U D G M E N T

[Arising out of SLP (C) No.7790 OF 2004]

WITH

TRANSFERRED CASE No.54 OF 2004.  

Anil Kumar Srivastava                                   \005    Petitioner       

Versus

State of U.P. & Another                         \005    Respondents

KAPADIA, J.

       Leave granted in SLP.

       Anil Kumar Srivastava claiming to be a public spirited citizen  residing in Sector 14, Noida, U.P. moved Allahabad High Court in  Civil Misc. Writ Petition No.10137 of 2004 [Transferred Case No.54  of 2004 herein] challenging the Scheme bearing No.2003-2004  (Commercial Hub) \026 Sector 18 floated by New Okhla Industrial  Development Authority (NOIDA) for construction of a commercial  hub on a plot bearing no.M-3 in Sector 18, Noida as arbitrary and  violative of norms contained in the Board Resolution dated 10.7.2003  and the precedents with regard to size and reserve price, resulting in  the loss to the State exchequer of Rs.340 crores.  In the writ petition, it  is alleged that the impugned Scheme awards 54,320.18 sq. mtrs. of  prime commercial land, without precedent, at 1/4th of the prevailing  market price and by fixing the reserve price at abysmally low, throw  away, price; that the said Scheme is, therefore, arbitrary and violative  of Article 14 of the Constitution.  In the writ petition, the petitioner  prayed for setting aside the Scheme.  Pending hearing and final  disposal, the petitioner sought interim reliefs restraining NOIDA,  respondent no.2 herein, from giving effect to the said Scheme.  By  impugned order dated 12.3.2004, the High Court refused the interim  relief as prayed for.  Aggrieved, the original petitioner came to this  Court by special leave.  Vide order dated 28.4.2004, this Court stayed  the operation of the impugned Scheme.  By order dated 9.7.2004, the  Court presided by Hon’ble the Chief Justice, at the request of  respondent nos.2 and 3 herein, directed Writ Petition no.10137 of  2004 pending in the Allahabad High Court to be transferred to this  Court under Article 139A of the Constitution..

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       By order dated 23.7.2004, the Court presided by Hon’ble the  Chief Justice, on the joint prayer made by all the counsel, directed the  matter to be listed for final hearing and accordingly this matter has  come for hearing.   

       As stated, the impugned Scheme is for development of plot  no.M-3 admeasuring 54,320.18 sq. mtrs. in sector 18 by constructing  thereon a commercial hub consisting of a shopping mall, multiplexes,  showrooms, retail outlets, hotels, restaurants and offices with  matching parking facility in order to decongest the said sector which  has now become a centre for small enterprises.  That shopping habits  have changed resulting in a demand for shopping malls and  entertainment centres, which require bigger plots.  That the object of  the said Scheme was integrated development of the sector.  The  salient features of the Scheme were : 30% ground cover; 150 floor  area ratio (FAR) and provision for 2800 estimated car spaces (ECS).   The reserve price was fixed at Rs.27,500/- per sq. mtr.  The Scheme  was kept open from 18.2.2004 up to 9.3.2004.  It was widely  advertised in Times of India, Hindustan Times, Economic Times,  Business Standard and Amar Ujala.  That nine reputed developers  including MGF, Unitech, Sun City, Sahara India and Omex purchased  the brochures.  However, on the closing date i.e. 9.3.2004, only one  tender of M/s DLF Universal Ltd., respondent no.3 herein, was  received and evaluated by the technical committee on whose  recommendation the financial tender was opened on 12.3.2004.   Respondent no.3 quoted Rs.31,850/- per sq. mtr. in their financial  tender, which was 15.81% higher than the reserve price of Rs.27,500/-  per sq. mtr.  Other developers like Unitech, Sahara India, Omex,  MGF, Sun City etc. also purchased the bid documents but they  abstained from bidding.   Since respondent no.3 was the only bidder  and since it had quoted the price which was higher than the reserve  price, its tender was accepted vide letter dated 12.4.2004 (hereinafter  referred to as "the allotment letter").  In the meantime, on 10.3.2004,  the petitioner herein moved the Allahabad High Court as stated above.

       By the allotment letter, respondent no.3 was informed that its  bid stood accepted; that the tender price was Rs.31,850.00 per square  metre; that the total premium was Rs.173,00,97,733.00; that earnest  money to be deposited was Rs.3 crores; that the allotment money to  be deposited was Rs.43,25,24,433.25; that the balance allotment  money to be deposited by 26.4.2004 was Rs.40,25,24,433.25 whereas  balance premium amounting to Rs.129,75,73,299.75 had to be  deposited by 10.7.2004.  It may be clarified that earnest money of  Rs.3 crores was adjustible against allotment money of  Rs.43,25,24,433.25.  Till date, respondent no.3 has deposited the  earnest money of Rs.3 crores and Rs.40,25,24,433.25 on 23.4.2004.   However, respondent no.3 has not deposited the balance premium  payable on 10.7.2004 as the Scheme was stayed by this Court vide  order dated 28.4.2004.

       It is the case of the petitioner that respondent no.2 is the  statutory authority under U.P. Industrial Area Development Act,  1976; that it is responsible for the development of the area in terms of  the Master Plan for Noida; that it has framed Building Regulations  w.e.f. 1.2.1986 containing guidelines of occupancy, building permits  and floor area ratio.  According to the petitioner, the reserve price of  Rs.27,500/- per sq. mtr. in the present case for a plot admeasuring  54,320.18 sq. mtrs. was abysmally low, particularly in view of the fact  that under the Board Resolution dated 10.7.2003, the reserve price of  plots measuring 5001 or more square metres had to be fixed at 1=   times the sector price which according to the petitioner was  Rs.90,000/- per sq. mtr.  In this connection, the petitioner has relied

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upon earlier Schemes of NOIDA for the year 2002 under which  reserve price of plots admeasuring 6000 to 7000 sq. mtrs. in sector 18  was fixed at Rs.40,000/- to Rs.75,000/- [See: Annexure P1].  That for  plots in same sector-18 admeasuring 60 sq. mtrs. to 90 sq. mtrs., the  reserve price was fixed at Rs.1,90,600/- (See: Annexure P2).  It has  been further alleged that the tender price at the rate of Rs.31,850/- per  sq. mtr. is also undervalued.  According to the petitioner, the said rate  is 1/4th of the prevailing market rate.  That such low rates would result  in unjust enrichment of the developer at the cost of the exchequer and  consequently, the Scheme needs to be set aside as arbitrary and  violative of Article 14 of the Constitution of India.

       In reply, respondent no.2 has pointed out that the impugned  Scheme was given wide publicity; that the development of the plot  admeasuring 54320.18 sq. mtrs. became necessary to decongest  sector-18 where car parking has become an acute problem; that  decongestion could be achieved by constructing shopping malls with  matching parking facility; that although the area of the plot in  question is 54,320.18 sq. mtrs., the FAR is restricted to 150 and  ground cover is restricted to 30% unlike the instances of plots  submitted by the petitioner where for a smaller plots of 6000 to 7000  sq. mtrs., the FAR is 150 and for still smaller plots of 600 sq. mtrs, the  FAR is 250 (See: Annexure P1).  That by offering the said plot  admeasuring 54,320.18 sq. mtrs, the Authority is saving on internal  development for amenities, parking etc.  That in the past, respondent  no.2 invited bids for plots admeasuring 7000 sq. mtrs. with 30%  ground cover and FAR of 150 with reserve price of Rs.40,000/- per  sq. mtr., which failed.  It is further pointed out, that, the reserve price  is not understated as alleged.  In this connection, it is pointed out that  the developer has tendered the rate of Rs.31,850/- per sq. mtr. which  is the rate higher than the rate of Rs.27,500/- per sq. mtr.  That in  addition to the reserve price, the tenderer has to provide for 2800 cars  parking space (minimum) in the basement level. That if the cost of  2800 cars parking space is taken into account, it cannot be said that  reserve price is understated.  That in the past, higher reserve price(s)  for comparatively smaller plots did not attract the developers.  That  the petitioner has confused the sector rate with circle rate.  The circle  rate is the notified rate.  It is fixed by the Government for the  guidance of the Sub-Registrar.  The circle rates are not fixed by  respondent no.2.  That under the Board Resolution dated 10.7.2003,  the reserve price of commercial plots measuring 5001 sq. mtrs. and  above is to be fixed at one and half times the sector rates.  That under  the resolution, the reserve price for commercial plot measuring 5001  sq. mtrs. and above should be fixed on the basis of average rate of  adjoining sectors.  In this connection, it is pointed out that sector 18  abuts sectors 17 and 27 (residential) and sector 16A (institutional);  that average rate in these sectors is Rs.12000/- per sq. mtr. and on the  basis of 1= times the average rate of these sectors, the reserve price  came to Rs.18000/-.  That even on the basis of the Highest Rate in  sector-17, being Rs.15,700/- per sq. mtr., the reserve price comes to  Rs.23,050/- per sq. mtr.  In the circumstances, respondent no.2 has  submitted that while fixing the reserve price in the present case at  Rs.27,500/- per sq. mtr., it has complied with the principles embodied  in the Board Resolution dated 10.7.2003.  It is further pointed out that  relatively smaller commercial plots in sector-18 sold in last six years  indicate the prevailing price of Rs.22,500/- per sq. mtr. (including  escalation of 15% per annum).  Lastly, it has been pointed out that the  impugned Scheme was kept open from 18.2.2004 to 9.3.2004; that it  was widely advertised; that on the closing date, only one tender was  received; that respondent no.3 quoted Rs.31,850/- per sq. mtr. in its  financial tender which was 15.81% higher than the reserve price of  Rs.27,500/- and in the circumstances, its tender was accepted.  In the

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circumstances, respondent no.2 submitted that the reserve price was  not understated and that the rate offered by the tenderer at Rs.31850/-  per sq. mtr. cannot be said to be under valued as alleged.  According  to the petitioner, the current notified rate in sector 18 was Rs.90,000/-  per sq. mtr. and consequently, the rate offered by the tenderer and  accepted by respondent no.2 at Rs.31,850/- per sq. mtr. was abysmally  low.  In the counter, respondent no.2 has pointed out that there is no  factual basis on which the petitioner has alleged that the prevailing  market rate is Rs.90,000/- per sq. mtr.  It is submitted that the  petitioner has confused the sector rate with the circle rate.  That in the  absence of sale instances and valuation report, it cannot be alleged  that the rate offered by respondent no.3 is understated/undervalued.   In the circumstances, it is submitted that the petition has no merit.

       In its counter, respondent no.3 \026 the developer has pointed out  that urban population today prefer shopping malls which are self  contained in a closed building vis-‘-vis traditional markets; that the  planning Authorities encourage the construction of these malls as the  administration is freed from maintaining and servicing traditional  market places for which it incurs huge expenditure.  As far as the  impugned Scheme is concerned, it has been pointed that the developer  is put under obligation to construct a shopping mall with matching car  parking facilities in the basement and around the mall; that the cost of  providing this facility has to be added to the reserve price; that under  the impugned Scheme, NOIDA gets Rs.174 crores (approx.) within 90  days; that the reserve price of smaller plots with different FARs and  ground cover cannot be relied upon for determining the reserve price  under the impugned Scheme, which applies to the plot measuring  54,320.18 sq. mtrs. with 30% ground cover and FAR of 150.  That in  the earlier instances of sales of plots bearing nos.M-30, M-13, K-1A  and K-1B, auctions had failed in the past.  That on the contrary, in  case of auction of two plots, L1 and L2 in sector-18, the reserve price  was Rs.22,500/- per sq. mtr. based on actual sales of adjoining plots in  last six years.  That such reserve price of Rs.22,500/- per sq. mtr. was  lower than the impugned reserve price of Rs.27,500/- per sq. mtr. in  the present Scheme.  In the circumstances, it has been urged in the  counter filed on behalf of respondent no.3 that the reserve price of  Rs.27,500/- per sq. mtr. has been fixed taking into account the  previous experiences and the prices prevailing in the adjoining  sectors.

       Mr. L. Nageshwar Rao, learned senior counsel appearing on  behalf of the petitioner submitted that the reserve price fixed by  respondent no.2 at the rate of Rs.27,500/- per sq. mtr. is contrary to  clause 2 (e) of the Board Resolution dated 10.7.2003;  that under the  said clause, the reserve rate of commercial plots admeasuring 5001 sq.  mtrs. or more was one and half  times the sector rate; that the sector  rate was Rs.90,000/- per sq. mtr.; that the reserve price of Rs.27,500/-  per sq. mtr. for the plot admeasuring 54,320.18 sq. mtrs., without sub- division, was abysmally low and understated.  That in the past,  respondent no.2 had never invited tenders for such a large sized plot  with such low reserve price.  It was further urged that the impugned  reserve price was not only contrary to the Board Resolution, it was  also contrary to the past precedents, both in terms of area/size of the  plot and the reserve price.  In this connection, reliance was placed on  annexures ’P1’ and ’P2’ to show that for plots admeasuring  6000/7000 sq. mtrs., the reserve price fixed was in the range of  Rs.40,000/-/Rs.75,000/- per sq. mtr.  It was submitted that transfer of  the said plot admeasuring 54,320.18 sq. mtrs. at such a low reserve  price of Rs.27,500/- per sq. mtr. would result in causing huge loss of  Rs.340 crores to the State exchequer.  It  was next contended that even  the tender price of Rs.31,850/- per sq. mtr. at which the offer of  respondent no.3 has been accepted is ridiculously low particularly  when the notified rate prevailing in sector 18 is Rs.90,000/- pr sq. mtr.  to Rs.1,00,000/- per sq. mtr.  Hence, it was submitted, that the reserve

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price has been fixed arbitrarily and in breach of clause 2(e) of the  resolution dated 10.7.2003 as also in contravention of the precedents  in relation to the area of the plot and the reserve price.  It was  submitted that the fixation of the impugned reserve price was  arbitrary, unreasonable and violative of Article 14 of the Constitution.

       On the above submissions, the central point which arises for  determination is : whether the tender price of Rs.31,850/- per sq. mtr.  is understated.  In the present case, respondent no.2 invited offers for  the plot admeasuring 54,320.18 sq. mtrs. for the shopping mall with  2800 ECS in order to decongest sector 18.  Wide publicity was given.  Several reputed developers bought tender documents.  However, at  the end of the day, there was only one bidder (respondent no.3) in the  field.  In the present case, malafides have been alleged, but not  pressed.  Therefore, the question before us is : whether respondent  no.2’s decision in accepting the bid of respondent no.3 was arbitrary,  unreasonable and in violation of the Board Resolution dated  10.7.2003.  

       Before coming to the above challenge, we would like to  examine the concepts of ’valuation’ and ’upset/reserve price’.  In the  case of McManus v. Fortescue & another  reported in [1907 Vol.II  K.B. page 1] it has been held by Court of Appeal that in a sale by  auction, subject to reserve, every offer/bid and its acceptance is  conditional.  That the public is informed by the fact, that the sale is  subject to a reserve, that the auctioneer has agreed to sell for the  amount which the bidder is prepared to give only in case that amount  is equal to or higher than the reserve.  That the reserve puts a limit on  the authority of the auctioneer.  He cannot accept a price below the  upset/reserve price.  That he could refuse the bid which is below the  upset price.

       The aforestated ruling explains the meaning of the term ’reserve  price’.   It indicates the object behind fixing the reserve price viz. to  limit the authority of the auctioneer.  In the present case, the board  resolution is meant to guide the officers of the second respondent.   The resolution prescribes the guidelines for fixing the reserve price.   The concept of reserve price is not synonymous with ’valuation of the  property’.  These two terms operate in different spheres.   An  invitation to tender is not an offer.  It is an attempt to ascertain  whether an offer can be obtained with a margin. [See: Pollock &  Mulla on Indian Contract & Specific Relief Acts \026 (2001) 12th  Edition. Page 50].

       Valuation is a question of fact.  This Court is reluctant to  interfere where valuation is based on relevant material. [See: Duncans  Industries Ltd. v. State of U.P. & others reported in (2000) 1 SCC  633].   The difference between valuation and upset price has been  explained in the case of B. Susila & another v. Saraswathi Ammal &  others reported in [AIR 1970 Madras 357] in which it has been held  that fixation of an upset price may be an indication of the probable  price which the land may fetch from the point of view of intending  bidders.  However, notwithstanding the fixation of upset price and  notwithstanding the fact that a bidder has offered an amount higher  than the reserve/upset price, the sale is still open to challenge on the  ground that the property has not fetched the proper price and that the  sale be set aside.  That the fixation of the reserve price does not affect  the rights of the parties.  Similarly, in the case Dr. A. U. Natarajan &  another v. Indian Bank, Madras reported in [AIR 1981 Madras 151]  it has been held that the expressions "value of a property" and "upset

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price" are not synonymous but have different meanings.  That the  term "upset price" means lowest selling price or reserve price.  That  unfortunately in many cases the word "value" has been used with  reference to upset price.  That the sale has to commence at the higher  price and in the absence of bidders, the price will have to be  progressively brought down till it reaches the upset price.  That the  upset price is fixed to facilitate the conduct of the sale.  That fixation  of upset price does not preclude the claimant from adducing proof that  the land is sold for a low price.

       Applying the above tests to the facts of this case, we find that  there is no material on record to show that the tender price of  Rs.31,850/- per sq. mtr. is a low price.  The entire edifice of the  petition is based on the challenge to the reserve price of Rs.27,500/-  per sq. mtr.  As stated above, fixation of the reserve price is to  facilitate the conduct of the sale. It was open to the petitioner to  challenge the tender price of Rs.31,850/- per sq. mtr. as understated,  notwithstanding the fixation of the reserve price.  No comparative   sales instances, with similar parameters of ground cover of 30% and  150 FAR, have been placed before us.  No figures of cost of 2800  ECS have been placed before us as such costs would increase the  reserve price.  On the other hand, we find that the reserve price has  been fixed by taking into several factors.  Firstly, in the past tenders  invited for relatively smaller plots with higher reserve price had  failed.  It is important to bear in mind that tender process is an  expensive exercise.  To resort repeatedly to this exercise is a costly  affair.  Secondly, in the present case, the reserve price is fixed by  taking into account the comparative offers/sales in the adjoining  sectors.  That the average of such sales has been taken into account  while fixing the reserve price in terms of clause 4(c) of the Resolution  dated 10.7.2003, which reads as under:\027 "4(C)           In developed sectors where tenders have  been received earlier, fixation of rates is proposed to be  on the basis of average price arrived at prior to the  scheme of fixation of reserve price, on the basis of rate  arrived on the above principle, whichever is more.  In  such a situation average rate is proposed to be fixed as  per the category and user mentioned in the preceding  paragraph."

Thirdly, the developer/tenderer is obliged to construct a matching car  parking facility of 2800 ECS whose cost is required to be added to the  reserve price of Rs.27,500/- per sq. mtr.  Lastly, in the present case it  has been submitted that under clause 2(e), reserve price had to be  fixed at 1= times the sector rate which according to the petitioner was  Rs.90,000/- per sq. mtr.  Clause 2(e) reads as under:\027 "2(e)   Commercial Plots measuring              One and a half times         5001 sq. metres or more                 of sector rates"

       Reading of the said clause indicates that the figure of  Rs.90,000/- is not mentioned.  It is a figure alleged by the petitioner.   As stated above, there is a difference between the circle rate and the  sector rate.  The petitioner has confused the two.  The circle rate is  notified by the Government for the guidance of the sub-registrar.   They are notified for revenue purposes.  There is nothing to show that  Rs.90,000/- per sq. mtr. was the sector rate.  In the present case, we  are concerned with a larger plot of 54,320.18 sq. mtrs. with different  variables of 30% ground cover and 150 FAR.  Keeping in mind all  these factors, the Authority has fixed the reserve price.  In the present  case, undue importance has been given to the fixation of the reserve  price.  As stated above, notwithstanding the reserve price, the  petitioner could have brought before the Court material, if any, to  show undervaluation.  In the present case, the tender price is  Rs.31,850/- per sq. mtr.  It is higher than the reserve price.  There is

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no material to show whether the tender price is understated.  In the  circumstances, there is no merit in the contention of the petitioner that  the land is sold at abysmally low price.

       In the case of Tata Cellular v. Union of India reported in  [(1994) 6 SCC 651], it has been held, while discussing the scope of  judicial review, that Courts do not sit in appeal; that the Courts merely  review the manner in which the administrative decision was made;  that the Court cannot substitute its own decision as it has no expertise  to correct the decision.  Applying the above test to the facts of this  case, we find that tender invitation was given wide publicity; that  although nine bidders bought the tender documents, only respondent  no.3 offered its bid; that the financial committee has recommended its  acceptance keeping in mind the prior experience and the terms and  conditions of the Resolution dated 10.7.2003 in the matter of fixation  of sector price and reserve price.  Hence, there is no merit in the above  contentions.

       Mr. L. Nageshwar Rao, learned senior counsel for the petitioner  submitted that under the impugned Scheme, two concessions have  been given arbitrarily to benefit the developer at the cost of the State  exchequer.  In this connection, reliance is placed on clause 10(A)&(B)  and clause 15 of the terms and conditions of the Scheme.  For the sake  of convenience, we quote herein below the aforestated clauses:\027       

"10.    GROUND RENT/LEASE RENT:         In addition to tendered amount, the allottee/lessee  shall have to pay yearly ground rent/lease rent in the  manner indicated below:\027

(A)     The ground rent/lease rent shall be charged @  2.5% p.a. of the total premium of the plot for the  first 10 years from the stipulated date of execution  of lease deed.  However, the ground rent/lease rent  shall be charged @ Rs.1/- per sq. mtr. per year for  the first three years from the stipulated date of  execution of lease deed.

(B)     The ground rent/lease rent shall be enhanced after  expiry of 10 years from the stipulated date of  execution of lease deed.  The enhancement will be  50% of lease rent/ground rent last thus fixed.

OR

The allottee has the option to pay 11 years lease  rent @ 2.5% p.a. of the total premium as one time  lease rent within first 10 years of allotment.   Thereafter, 11 times of the prevailing rate shall be  payable as one time lease rent.  In such case, the  allottee has to clear outstanding of lease rent and  interest first

15.     TRANSFER:         The lessee can transfer the built-up premises over  the plot with prior permission of the Authority subject to  the rules and regulations for transfer and on payment of  transfer charges prevailing at the time of such transfer.   No transfer charges shall be applicable in case of transfer  of built up commercial space during the first 2 years from  the date of completion.  Thereafter, transfer charges shall  be payable on pro-rata basis as applicable.  However, the  purchaser shall be required to pay pro-rata lease rent as

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applicable.  The sub-lessee shall be required to make the  built up space functional with in one year from the date  of sub-lease and submit the prescribed documents to the  Authority in proof thereof.  Thereafter, extension charges  shall be payable, as applicable.

       All the terms and conditions of the  brochure/allotment/permission for grant of transfer and  lease deed shall be applicable on the  allottee/lessee/transferee."

       As can be seen from the above two clauses, in addition to the  tendered amount, the allottee is obliged to pay ground rent; that the  ground rent is payable at 2.5% of the total premium of Rs.173 crores  (approximately) during the first 10 years from the date of the lease.   However, for first three years, concession is given in payment of rent  to enable the developer to attract entrepreneurs to put up hotels,  restaurants, multiplexes etc.  So also for the first two years, transfer  charges are not payable in cases of transfer of built up commercial  spaces.  We do not find any merit in the argument of the petitioner  that these concessions/incentives are arbitrarily given as largesse to  the tenderer.  These concessions are a part of terms and conditions of  the Scheme, which was kept open for all eligible bidders.  Further, we  do not have any figures to show the alleged loss to the exchequer.   Further, when a Scheme is challenged, we have to look at it as an  entire package.  We have to see the tender price, the cost of putting up  amenities like ECS, the cost-benefit ratio, the future projections in  terms of increase in revenue, employment etc.  None of these facts  have been brought out in the petition.  Hence, there is no merit in the  contention that the above concessions have been given arbitrarily to  the developers.   

       For the foregoing reasons, we do not find any merit in the Civil  Appeal No. 5402 of 2004, arising out of SLP (C) No.7790 of  2004, as well as in the Transferred Case No.54 of 2004 [Writ Petition  No.10137 of 2004 of Allahabad High Court] and the same are  accordingly dismissed, with no order as to costs.  We direct  respondent no.3 to pay respondent no.2 the balance 75% of the  premium in terms of Item 12 of letter of allotment dated 12.4.2004  within one week from the date of pronouncement of this judgment.