HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
"Reserved"
Case :- WRIT - C No. - 39822 of 2005
Petitioner :- Jlg Properties Pvt. Ltd. Thru' Director J.L. Gugnani
Respondent :- N.O.I.D.A. Thru' Administrative Officer
Counsel for Petitioner :- K.C. Sinha, A.B. Sinha, A.N. Sinha, A.R.Dubey, Manas Bhargava,R.C. Sinha,S.C. Maheshwari, Shivi Misra,Shyam Lal Mishra,Vinod Kumar, Vinod Prasad
Counsel for Respondent :- Anurag Khanna, A.R.Dubey, Ramendra
Pratap Singh,S.C.
Hon'ble Krishna Murari, J.
Hon'ble Amar Singh Chauhan, J.
Respondent-New Okhla Industrial Development Authority (for short herein after referred to as 'NOIDA') invited bid in September, 2004 for allotment of a plot no. H-1, Sector 63, NOIDA for construction of a hotel. As per terms and conditions of the scheme a sum of Rs.50.00 lacs was to be deposited as earnest money and a sum of Rs.10,000.00 was to be deposited as processing fees. The reserve price for the hotel site was fixed as Rs.15,000.00 per sq. mtrs. The area of site was approximately 12874 sq. mtrs.
The petitioner, which is a Private Limited Company incorporated under the Indian Companies Act, 1956, submitted tender form along with earnest money of Rs.50.00 lacs by means of Pay Order No. 537345 drawn on Vijaya Bank, New Delhi and processing fees of Rs.10,000.00 by means of Pay Order No. 537344 again drawn on Vijaya Bank, New Delhi. The tender form along with two Bank Drafts was submitted by the petitioner-company on 20th September, 2004. As per terms and conditions of the tender, the allottee was required to deposit 25% of the bid amount within 30 days of its being communicated in respect of the allotment of the plot by respondent-authority. Clause 6 (I) of the terms providing for the same reads as under :
"6 (I). Successful tenderer shall be issued registered allotment letter and deposit 25% of the tendered amount after adjustment of earnest money, through bank draft drawn in favour of 'NOIDA' payable at NOIDA/New Delhi/Delhi within 30 days from the date of issue of the acceptance/allotment letter through prescribed challan available in the banks mentioned in the Brochure and submit the copy of deposited challan in Commercial Department of the Authority. In case of failure to deposit this amount entire earnest money deposited shall be forfeited.
The petitioner has alleged in the writ petition that despite repeated enquiries made by its representative from the respondent-authority and despite letter dated 10.12.2004 seeking clarification of the position as to whether tender was accepted or not, no information was given regarding status of its tender. It has been alleged that despite allotment letter addressed to the petitioner was kept ready, the same was not despatched. It is further alleged that the representative of the petitioner was pressurized to give a letter dated 20.01.2005 seeking extension of time for payment of balance consideration and accepting that the allotment letter has been received by him today. In reply to the aforesaid letter, the respondents-authority informed the petitioner that it is not possible to accept the request for extension of time for depositing the amount and the allotment already stands cancelled which was communicated vide letter dated 31st January, 2005. The case set up by the petitioner is that it came to know of the cancellation order dated 31st January, 2005 when it received a letter dated 12.03.2005 and the copy of the letter dated 31st January, 2005 was never sent to the petitioner and has never been received by it. It is further alleged by the petitioner that the allotment letter dated 16.11.2004 was despatched by the NOIDA on 02.03.2005 and was received by the petitioner on 03.03.2005. A copy of the said allotment letter and the copy of the envelope have been annexed as Annexure P-8 and P-9 to the writ petition.
The main grievance raised by the petitioner is that without making available the allotment order, the allotment made in its favour has been cancelled on the ground that terms and conditions enumerated in the allotment letter was not complied.
Specific case set up by the petitioner is that as per terms and conditions the allotment letter was never sent to the petitioner either by registered post or by any other means, and despite repeated enquiries by the representative of the petitioner neither any communication was sent nor any information about the status of the tender was provided. However, when the authorized representative of the petitioner visited the office of the respondents-authority company under threat of cancellation of allotment he was forced to give a letter, making a request for extension of time to deposit the consideration by 30 days. He was also forced to mention in the said letter that copy of allotment order has been received today itself though the same was not handed over. The said letter is dated 20.01.2005. In reply to the said letter, the petitioner alleges to have received a letter dated 12.03.2005 informing that request for extension of time is not liable to be granted as the allotment already stands cancelled which was duly communicated vide office letter no. NOIDA/Comm-2005/14 dated 31.01.2005 and the same holds good. Petitioner has further alleged that alleged allotment letter dated 16.11.2004 was thereafter sent to the petitioner through speed post on 02.03.2005 which was received on 03.03.2005. It has also been pleaded that copy of cancellation order was also never served upon the petitioner and a copy of the same could be obtained with great difficulty on 02.05.2005.
In response to the notice of this Court the NOIDA has filed a counter affidavit stating that the allotment letter was received by the representative of the petitioner personally by hand on 18.11.2004 from central receipt and despatch section and in token of receipt he put his signatures on the despatch register. With respect to cancellation order dated 31.01.2005, it has been stated that same was sent to the petitioner through speed post. The answering respondent has filed photo copy of despatch register bearing an illegible signature in column meant for recording amount spend for purchasing stamp for dispatching the letters. With regard to cancellation letter dated 31.01.2005 though allegations have been made that it was sent through speed post but neither copy of despatch register nor any postal receipt or acknowledgement has been filed in support of the allegation.
This Court vide order dated 11.10.2006 provided a chance to the parties to amicably settle the dispute between themselves by passing the following order :
"This is a writ petition for quashing the cancellation letters issued by the respondents in respect of the disputed Hotel and for issuing a direction to them to accept the balance allotment money from the petitioner.
We have heard learned counsel for the petitioner Sri S. C. Maheshwari, Senior Advocate, assisted by Sri A. B. Sinha, Advocate, and Sri Anurag Khanna, Advocate, on behalf of the contesting respondents.
It transpires that petitioner wants to deposit a sum of Rs.13,98,32,500/- (Thirteen Crores Ninety Eight Lacs Thirty Two Thousand and Five Hundred) by way of Bank Draft, provided NOIDA Authority/the Chief Executive Officer, NOIDA, may consider their case on a plain slate.
In this view of the matter, we direct the petitioner to deposit Bank Draft in question for a sum of Rs.13,98,32,500/- along with their comprehensive representation before the Chief Executive Officer, NOIDA within two weeks from today and in case, such representation is filed within the time stipulated above, the Chief Executive Officer, NOIDA, shall decide the same exercising its unfettered discretion and pass such order as may be deemed fit and settle the matter amicably7 on their own level without intervention of the Court.
It is made clear that in case, it is not possible to get the matter settled amicably, the Chief Executive Officer, NOIDA shall return the Bank Draft to the petitioner.
The representation of the petitioner shall be decided by the Chief Executive Officer, NOIDA within three weeks of the receipt of the representation.
Either of the counsel may place before this Court, the copy of the decision taken by the Chief Executive Officer, NOIDA on the aforesaid representation.
List on 20.11.2006 for further orders."
The petitioner deposited a sum of Rs.13,98,32,500/- by means of a Bank Draft and made a representation before the Chief Executive Officer, NOIDA. Vide order dated 07.11.2006, the representation was rejected by the Chief Executive Officer. Thereafter, the petitioner moved an amendment application and challenge was made to the order dated 07.11.2006 as well. The Chief Executive Officer while rejecting the representation has recorded a finding that allotment letter was issued and already received by the representative of the petitioner. In this regard, he has placed reliance on the fact recorded in the letter of the representative of the petitioner dated 20.01.2015 that allotment letter was received on the same day. Similarly in respect of cancellation letter also it is recorded in the order that it was sent through speed post, and since it was not received back the presumption is that it was served. Just like counter affidavit the order also lacks any detail even the date on which cancellation letter was sent by speed post.
The whole controversy thus revolves round the fact whether the allotment letter dated 16.11.2004 was served upon the petitioner, or in other words was received by its representative by hand on 18.11.2004. Under clause 6 (I) of terms and conditions of tender, the successful tenderer was to be issued registered allotment letter who on receipt of same was under an obligation to deposit 25% of the tendered amount after adjustment of earnest money through Bank Draft drawn in favour of NOIDA within 30 days through prescribed challan available with the bank mentioned in the brochure. In case of failure to deposit the amount entire earnest money was liable to be forfeited.
Thus issuance and receipt of allotment letter happens to be a precondition for start of 30 days period prescribed for depositing 25% tendered amount.
Admittedly, the allotment letter is dated 16.11.2004. The terms and conditions of the tender required the same to be sent by registered post. The allotment letter also bears an endorsement on the top "By Speed Post". A very categorical case set up by NOIDA is that allotment letter was received by the representative of the petitioner by hand on 18.11.2014 and in token thereof he put his signature on the despatch register, which has been filed as Annexure CA-II to the counter affidavit. Heavy reliance has been placed by learned counsel for the respondent NOIDA on the said document and also the letter dated 20.01.2005 written by the representative of the petitioner requesting for extension of time to deposit the money and acknowledging the receipt of allotment letter. Placing reliance on the said two documents it has been submitted by Sri Ramendra Pratap Singh that allotment letter was duly received by the petitioner and since they failed to deposit the 25% of the tender amount within 30 days there was a violation of terms and conditions on account of which allotment was cancelled.
When the matter was heard by us on 18.09.2015, Sri Rahul Agarwal appearing for the petitioner raised certain doubts about the genuinity and veracity of the photo copy of the despatch register filed with the counter affidavit. It was pointed out that entry of the name of the petitioner in the despatch register has not been serialized although all other entries have been given a serial number, and the entry in respect of the petitioner has been squeezed in between serial no. 1322 and 1323. In order to cut the controversy short learned counsel appearing for NOIDA sought three days time to seek instructions in the matter which was granted when the matter was taken up on 07.10.2015 Sri Ramendra Pratap Singh stated that record could not be received. On his request, the proceedings were adjourned to 07.10.2015. The matter was finally heard on 08.10.2015 when original despatch register was produced which has been perused by us. Following facts are revealed from perusal of the original despatch register.
(i) All the entries in the despatch register contains a serial number
(ii) The entry in respect of the petitioner has been squeezed in between serial number 1322 at the end of the page and serial no. 1323-B which is on the next page and has been given serial no. 1322-A. It contains an illegible signature along with dated 18.11.2004 in column no. 6 of the register meant for recording stamp received.
It is note worthy that in the photo copy of the said page of the register filed as Annexure CA-II the entry in respect of the petitioner is after serial no. 1322 without any serial number and the next entry has been given serial no. 1323 dated 19.11.2004. Thus, there is remarkable difference between the original despatch register produced before us and the photo copy of the same filed as Annexure CA-II.
We have not been able to find any other entry in the register having been serialized as 'A', 'B'. Nor there is a single entry where the document has not been despatched through post and was received by hand. This in itself casts a serious doubt on the case set up by NOIDA as also the manner in which the record has been maintained in the case of petitioner and it is not established that allotment letter was received by hand on 18.11.2004.
Apart from above, reliance placed upon the letter dated 20.01.2015 of the representative of the petitioner stating that copy of the allotment letter has been received, to stress the point that allotment letter was served upon the petitioner is of no avail. The said letter which has been filed as Annexure CA-I reads as under :
"Dated 20/1/2005 To, The Chief Executive Officer, New Okhla Industrial Development Authority, Main Administrative Building, Sector-VI, NOIDA - 201301 Sub : Allotment Plot no. 1, Block-H, Sector-63, NOIDA under Scheme no. 2004-2005 (Hotel)-1.
Dear Sir, Further to our letter dated 10.12.2004 wherein we had requested you the status and outcome of the tender filed on 26.10.2004 in respect to the commercial plot no. 1, Block-H, Sector-63 under scheme no. 2004-2005 (Hotel)-1, we would like to inform you that we have received the acceptance letter no. NOIDA/Commercial/2004/1149 regarding allotment of the same today.
Our Director, Mr. J. I. Gugnani is unwell and on medications, was hospitalized for a long time due to a Brain Stroke and has been advised bed rest by the doctors (copies of the medical certificates/transcriptions enclosed). We are trying to arrange the funds, so we would request you to kindly give us a time of 30 days (from today) to make the payment.
Thanks for your understanding and cooperation.
Thanking you, Yours faithfully, For JLG Properties Pvt. Ltd.
Sd./-
Director/Auth. Signatory.
Though the petitioner has alleged that copy of the allotment order was never given and under threat of cancellation of allotment, his representative was made to write the same, but even if the same is disbelieved, at best it can be said that allotment order was received, as recorded in the letter on the same day which means the day letter was being written i. e. 20.01.2005.
In the order dated 7.11.2006 passed by Chief Executive Officer as well as during course of arguments before us much stress has been laid on the said letter. However, we fail to understand how the said letter supports the case set up by the authority that allotment letter was received by hand on 18.11.2004 when it is in unequivocal terms recorded in the letter that allotment order has been received today. The use of word "today" obviously refers to the same day when the letter was written. Admittedly the date of writing the said letter is 20.01.2005. The only inference which a man of reasonable prudence can draw is that allotment order was received by the representative of the petitioner on 20.01.2005.
According to terms and conditions there was 30 days time available to the petitioner for depositing 25% of the tender amount. Even before expiry of the period of 30 days from the said date, the NOIDA according to its own case cancelled the allotment on 30.01.2005 which is in clear violation of the terms and conditions enumerated in clause 6 (I) of the terms and conditions of the tender.
The manipulations in the despatch register totally demolishes the case set up by NOIDA that allotment order was received by the representative of the petitioner by hand on 18.11.2004.
Who carried out the manipulation is a matter to be investigated by the Authority itself. For what purpose it was carried out is any body's guess. In so far as petitioner is concerned, as already discussed above, the cancellation order was passed even before expiry of period of 30 days, which is in violation of terms and conditions. The NOIDA being a public authority is not expected to act in such a manner. Thus, the impugned cancellation order as well as the order dated 07.11.2006 passed by Chief Executive officer are unsustainable and liable to be quashed.
Undisputedly, during the pendency of the petition no third party rights have been created over the plot in dispute in view of the interim order dated 27.05.2005 as well as 01.03.2007 passed by this Court directing the NOIDA not to create third party rights in respect of the plot in dispute, which continued to be in operation throughout. The fact that no third party right has been created is not being disputed by NOIDA.
For the aforesaid facts and discussion the two impugned orders dated 31.01.2005 and 07.11.2006 are hereby quashed. The writ petition stands allowed. Petitioner shall be entitled for allotment of plot no. H-1, Sector 63, NOIDA on his complying with the terms and conditions of the allotment order. The period specified in the allotment order for completing various formalities shall begin from today.
November 20th, 2015 (Amar Singh Chauhan, J) (Krishna Murari, J)
Dcs.