Page 204 - ELT_15th July 2020_Vol 373_Part 2

186 EXCISE LAW TIMES [ Vol. 373

and intra vires the provisions of the Constitution. Nevertheless, it
cannot and will not compare which policy is fairer than the other,
but, if a policy or law is patently unfair to the extent that it falls foul
of the fairness requirement of Article 14 of the Constitution, the
Court would not hesitate in striking it down.
147. Finally, market price, in economics, is an index of the value
that a market prescribes to a good. However, this valuation is a
function of several dynamic variables: it is a science and not a law.
Auction is just one of the several price discovery mechanisms. Since
multiple variables are involved in such valuations, auction or any
other form of competitive bidding, cannot constitute even an eco-
nomic mandate, much less a constitutional mandate.
148. In our opinion, auction despite being a more preferable
method of alienation/allotment of natural resources, cannot be held
to be a constitutional requirement or limitation for alienation of all
natural resources and therefore, every method other than auction
cannot be struck down as ultra vires the constitutional mandate.”
29. In the light of the aforesaid judgments, we do not find any merit in the
argument that the grant of licence on the basis of first come first serve basis
is fair, reasonable or transparent method. It is wholly immaterial that the li-
cence is sought in respect of the land owned by them. The fact is that with-
out licence, the Group Housing cannot be set up. The licence is a pre-
requisite condition to develop a colony which is a privilege granted by the
State and is largesse. In the absence of a licence, a land owner continues to
be owner of the land. There is no compulsion for him to change the land
use or to set up a colony, but once it is proposed to set up a colony, then the
statutory conditions, pre-requisite for grant of a licence, are to be satisfied.
30. We further find that the principle of first come first served basis has
led to an unholy race. The petitioners submitted their application dated 10-
9-2010 which was received on 13-9-2010 soon after the finalization of the lay
out plan on 25-8-2010. Some of the other aspirants submitted applications
for licences on the day the Draft Development Plan was published on 4-10-
2010. We find that the public notice does not give any starting time for
submission of an application nor the last date. It is an open ended scheme.
Any applicant can apply at any point of time. Such application would be
considered if the density is available. It does not take into consideration as
to whether the external developments have been completed or shall be
completed by the time the constructed apartments in the Group Housing
shall be offered for possession. It does not reflect the preparedness of the
State for the grant of licence. Since Gurgaon is a fast developing urban
complex, there is large demand for licences, but we find it is not fair and
reasonable to accept the application(s) on the basis of Draft Development
Plan and grant the licence(s) on first come first served basis.
31. Though there is a provision of rejection of the application yet the ac-
tion of permitting some of the applicants to make up the deficiencies, while
declining such permission to the other, is an arbitrary process of grant of li-
cence. Since, to develop a colony is a privilege; the consideration of the
same has to be fair and reasonable manner. What should be transparent
and fair method of grant of licence, it is for the State Government to pre-
scribe such policy. Whether the policy is to go for an auction the licences af-
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