Vinod Sharma vs Delhi Development Authority

Hima Kohli, J.—The petitioner has filed the present writ petition in March, 2010 praying inter alia for quashing the action of the respondent/DDA in declining to grant him extension of time to deposit the balance amount payable by him in respect of Unit No. F-2, at CSC No. 2, Preet Vihar, G Block (East Zone), Delhi, and to restore the allotment of the demised shop in his favour by granting him one month''s time to pay the balance amount with interest and penalty. In the alternative, the petitioner has sought directions to the respondent/DDA to share with him to the extent of 3/4th, the unearned increase/profit upon resale of the subject shop or at least refund the entire amount of Rs. 15,50,000/- deposited by him with the respondent/DDA towards the allotment of the demised shop with up-to-date interest. In a nutshell, the facts of the case are that in the year 2006, the respondent/DDA had issued a public tender for conducting an auction of the subject shop. The petitioner had applied as one of the bidders and was declared as a successful bidder on 22.6.2006, at a bid amount of Rs. 20,00,016/-. On the same date, the petitioner had deposited 25% of the bid amount as earnest money, amounting to Rs. 5,00,004/-. On 10.8.2006, the respondent/DDA had issued a demand letter to the petitioner calling upon him to pay the balance amount plus Rs. 45/-, i.e., a total amount of Rs. 15,00,057/- within 30 days of issuance of the demand letter, i.e., on or before 9.9.2006. It was further stated that if the aforesaid amount would not be deposited by the petitioner within the time stipulated, then, interest would be chargeable @ 15% (compoundable) and if the complete payment with interest would be made beyond 180 days, i.e., on or before 9.3.2007, no regularization of allotment would be possible.

Admittedly, the petitioner did not deposit the entire balance amount of Rs. 15,00,057/- with the respondent/DDA on or before 9.3.2007. Instead, he proceeded to deposit a sum of Rs. 10,50,000/- with the respondent/DDA in three installments, which are as under :

Date

Amount

07.10.2006

Rs. 4,50,000/-

24.04.2007

Rs. 3,50,000/-

24.04.2007

Rs. 2,50,000/-

Total

Rs. 10,50,000/-

Thus, out of the total amount of Rs. 20,00,016/-, the petitioner had deposited a sum of Rs. 15,50,004/- with the respondent/DDA, out of which amount, the respondent/DDA had received only a sum of Rs. 9,50,004/- by 09.03.2007, the extended date fixed by the respondent/DDA.

Pertinently, before making the aforesaid deposit, on 6.2.2007, the petitioner had sought extension of time from the respondent/DDA till April, 2007 to deposit the entire balance amount. The aforesaid request of the petitioner had been declined by the respondent/DDA on 8.5.2007 and he was further informed that the allotment of the demised shop made in his favour stood cancelled and the earnest money had been forfeited as he failed to deposit the balance premium within the stipulated time. After receiving the aforesaid cancellation letter, the petitioner started making representations against the cancellation and forfeiture of the earnest money and sought restoration of the demised shop by making a number of representations to the respondent/DDA.

On 12.11.2007, the petitioner received yet another letter from the respondent/DDA reiterating its earlier decision that his allotment had been cancelled on 8.5.2007 due to non-payment of the balance premium within the stipulated time and the earnest money had been forfeited. Not satisfied with the aforesaid rejection letter, the petitioner made a representation to the Commissioner, DDA on 3.3.2008 with the same request for restoration of allotment and permission to pay the balance amount. On 2.3.2009, the petitioner received a reply from the respondent/DDA informing him that his representation dated 5.2.2009 had been considered by the Competent Authority, but the same had not been acceded to. This was followed by several representations made by the petitioner to the respondent/DDA, including a representation dated 26.10.2009 made to the Lieutenant Governor, Govt. of NCT of Delhi in his capacity as the Chairman, DDA.

It is the case of the petitioner that on 17.3.2010, he came across a fresh notice issued by the respondent/DDA, wherein reference was made to an earlier advertisement issued on 28.2.2010 inviting tenders for freehold built-up shops and offices at prime locations in Delhi, that had included the subject shop. Pertinently, bids had been invited from the public in respect of the subject shop at a reserved price of Rs. 77,71,250/-. Counsel for the petitioner states that upon perusing the aforesaid advertisement, the petitioner approached this Court by filing the present petition on 23.3.2010.

When the present petition was listed for admission on 25.3.2010, the Court had observed that there was no infirmity in the order of cancellation which had been passed by the respondent/DDA as far back as on 8.5.2007. In view of the above, the reliefs sought by the petitioner at prayers (b) & (c) of the writ petition, i.e., for grant of extension of time and restoration of allotment of the demised shop, were declined and notice was issued to the respondent/DDA limited to prayers (d) & (e) on the aspect of refund of the excess amount allegedly forfeited by the respondent/DDA, apart from the earnest money deposited by the petitioner, returnable on 29.4.2010.

A counter affidavit was filed by the respondent/DDA on 6.8.2010, wherein it was stated that vide letter dated 27.7.2010, the petitioner had been called upon to receive the refund of the excess amount deposited by him while excluding the earnest money, upon submission of requisite documents, but he had failed to take necessary steps in that regard. A copy of the letter dated 27.7.2010 enclosed as Annexure CA-2 with the counter affidavit filed by the respondent/DDA reveals that the petitioner had been called upon to submit certain documents so as to enable DDA to take further action for refund of the amount deposited by him in respect of the demised shop, except for the earnest money. Admittedly, till date, the petitioner has not taken any steps to seek refund of the excess amount from the respondent/DDA by submitting requisite documents.

Counsel for the petitioner seeks to rely upon the order dated 16.3.2011 to state that on the said date, he had informed the Court that though the demised shop had been included in the auction that was held by the respondent/DDA subsequently, it had not been able to sell the said shop and that as on the aforesaid date, the subject shop had remained unsold and therefore DDA ought to be directed to charge appropriate interest on the balance amount as per its policy and restore the shop in favour of the petitioner. He further states that a similar request had been made on behalf of the petitioner earlier on 29.4.2010 when the respondent/DDA was not represented through counsel. Learned counsel submits that the respondent/DDA has prepared a tender programme for a number of shops, including the subject shop, and the auction is to be held in the month of March, 2012. A copy of the tender programme is handed over by the counsel for the petitioner and taken on record. He therefore submits that the respondent/DDA ought to consider the request of the petitioner for restoration of the shop as recorded in the order dated 16.3.2011.

Counsel for the respondent/DDA refutes the contentions of the counsel for the petitioner and states that the request of the petitioner cannot be acceded to. He further submits that a bare perusal of the copy of the tender programme reveals that as against the reserved price of the shop fixed at Rs. 19,89,400/- by the respondent/DDA in the year 2006, it has now decided to increase the reserved price to Rs. 77,71,250/-, which is more than four times of the reserved price fixed earlier. He states that there is no good reason as to why the request of the petitioner be acceded to when it shall cause an unjustifiable loss of about Rs. 50,00,000/- to the public exchequer. He further states that while issuing notice on the petition on 25.3.2010, the scope of the present writ petition had been confined to the reliefs (d) & (e) alone and that even otherwise, pursuant to the order dated 16.3.2011, he has obtained instructions from the department to the effect that the respondent/DDA cannot accede to the request of the petitioner for permission to deposit interest on the balance amount and accept the restoration charges/penalty so as to restore the subject shop in his favour as that would open a flood gate of litigation.

Counsel for the petitioner rebuts to the aforesaid submission made by the counsel for the respondent/DDA by stating that in similar circumstances, the respondent/DDA had made such concessions in the past.

This Court does not propose to expand the scope of the present petition beyond what was considered in the order dated 25.3.2010, i.e., prayers (d) & (e) of the writ petition. Merely because the subject shop could not be auctioned by the respondent/DDA in its earlier auction held in April, 2010 and even thereafter, can itself not be a ground to hold in favour of the petitioner. The bid was made by the petitioner with open eyes and he is bound by the terms and conditions of the tender. In any case, it is a purely contractual matter between the petitioner and DDA and the issue being in the realm of contract, there is no justification for this Court to interfere in judicial review, there being no illegality, arbitrariness or perversity pointed out in the decision making process adopted by the respondent/DDA.

As regards the reliefs sought in prayers (d) & (e), counsel for the respondent/DDA has clearly stated that as per its letter dated 27.7.2010, the petitioner had been offered refund of the amount deposited by him, except for the earnest money, but he did not take any steps to submit the requisite documents in this regard. Pertinently, even after issuance of the aforesaid letter dated 27.7.2010, the petitioner has not chosen to approach the respondent/DDA till date by submitting the requisite documents to process his case for refund of the amount.

The preset petition is accordingly disposed of with liberty granted to the petitioner to approach the respondent/DDA for refund of the excess amount, except for the earnest money forfeited in terms of the condition of auction, along with the requisite documents, as mentioned in the letter dated 27.7.2010 addressed by the respondent/DDA to the petitioner. Upon completion of formalities, the respondent/DDA shall process the case of the petitioner for refund of the aforesaid amount within a period of four weeks. The petition is disposed of, while leaving the parties to bear their own costs.