* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 01.10.2013
+ W.P.(C) 2163/2013
SUDHIR AGGARWAL AND ANR
..... Petitioner
Through: Mr. Ashish Malhotra, Adv.
versus
D.D.A.
..... Respondent
Through: Mr. Nikhil Singhvi, Adv. for DDA
with C.S. Negi, Assistant Engineer
(CE)-DDA
CORAM:
HON'BLE MR. JUSTICE V.K.JAIN
JUDGMENT
V.K.JAIN, J. (ORAL) On 1.3.2010, the respondent- DDA advertised in the newspaper for sale of various built-up commercial units. The petitioner before this Court also purchased the tender document and submitted a tender to DDA for purchase of commercial unit number 108 situated in Paschim Vihar, New Delhi. As per the tender documents, the area of the aforesaid shop/unit was 23.29 square metres. The tender of the petitioner for purchase of the aforesaid shop for Rs.20,25,000/- as against the reserved price of Rs.18,63,200/- was accepted by DDA and a demand letter was issued to him after adjusting the earnest money which he had already deposited with the tender. On receipt of the demand letter, the petitioner visited the aforesaid shop on 30.4.2010 and noticed, at that time, that the actual area of the aforesaid unit was only 18.37 sq. meter. In his representation dated 30.4.2010 to DDA the petitioner claimed that the area of the aforesaid shop was short by 3 square meters. He, W.P.(C) No.2163 of 2013 Page 1 of 4 therefore, sought revaluation of the aforesaid shop and re-issuance of the demand letter accordingly. This was followed by a letter dated 20.5.2010 whereby the petitioner deposited entire balance amount of Rs.15,18,795/- with DDA, but again making a request of re-measurement fo the shop on the ground that the area was short by 3 square meters. Since no re-measurement is forthcoming from DDA, the petitioner is before this Court seeking the following reliefs:
a. directing the respondent to modify the demand letter dated 21.4.2010 bearing number F51(15)2010/CE/731 as per the actual plinth area of 18.37 square meters;
b. directing the respondent to refund the excess amount of excess area of 4.92 square meters to the petitioner.
2. In its counter affidavit, the respondent -DDA has claimed that the plinth area of the unit given to the petitioner, as advertised by it was 23.29 square meters and same is the actual plinth area of the said shop.
3. Vide order dated 29.4.2013, this Court directed the concerned Executive Engineer to visit the aforesaid shop, measure the same in the presence of the petitioner and verify as to what actually is the plinth area of the said shop, as per the norms of the DDA. He was also required to give in his report the carpet area of the shop. A perusal of the report submitted by the Executive Engineer of DDA would show that the carpet area of the shop in question is 18.86 square meters whereas its plinth area is 20.97 square meters. The dispute between the parties is with respect to inclusion of the area of the corridor in front of the shops in the complex including the shop purchased by the petitioner. The said corridor, in front of the shop of the petitioner, measures 3.00 x 2 square meter and half of the said area is sought to be included by DDA in the actual plinth area of the shop, thereby making a total W.P.(C) No.2163 of 2013 Page 2 of 4 area of 23.97 square meters. After deducting shaft area measuring 0.68 square meters, the net plinth area, according to DDA was 23.29 square meters.
4. A perusal of the tender document would show that at no stage did DDA inform the tenderers that the half of the proportionate area of the corridor in front of the shop has been included in the plinth area of the shop indicted in the tender document. The corridor in question is a public corridor meant for use of the shopper visiting the complex wherein the shop of the petitioner is situated on the first floor. The petitioner has absolutely no right to use the aforesaid corridor even in front of his shop. Neither he can lock the area of the corridor in front of his shop nor is he permitted to store his merchandise in the said area. The petitioner, therefore, would have no right, title or interest in the said corridor. Therefore, in the absence of any notification to the contrary to the tenderers, DDA was not at all justified in including half of the area of the corridor in the plinth area of the shops which it had advertised for sale by tender. As noted earlier, the tender document contained no indication that the area of the corridor in front of the shops, despite its not being available for use of the shopkeepers, has been included in the plinth area given in the tender document.
5. The learned counsel for the respondent states that DDA had required the tenderers to visit the shops before submitting tenders and, therefore, the petitioner ought to have measured the area of the shop before submitting his tender. I, however, cannot accept the contention. Before submitting a tender, the tenderer would not know whether the tender sought to be submitted by him would actually be accepted by the DDA or not. Therefore, it would be unrealistic to expect him to measure the area on the spot. In fact, this is also not known whether the shops were kept open by DDA for the purpose of allowing the prospective tenderers to measure the area or not. In these circumstances it would be difficult to a accept the argument that since the W.P.(C) No.2163 of 2013 Page 3 of 4 petitioner did not carry out the physical measurement of the shop before submitting his tender he is now precluded from raising a dispute with respect to actual area of the shop.
6. In my view, since DDA, despite indicating in the tender that the area of the shop was 23.29 sq.mtrs., handed over to the petitioner a shop, actual plinth area of which comes to only 20.29 sq.mtrs., it must necessarily refund to the petitioner the proportionate price which it charged for the area measuring 3 sq.mtrs. which it has without any justification added to the actual plinth area of the shop.
7. The writ petition is disposed of with the direction to the DDA to refund a sum of Rs.2,60,841.00 to the petitioner within four (4) weeks from today. The possession of the aforesaid shop in any case will be delivered to the petitioner at 11:00 a.m. on 4.10.2013 at the site. The concerned Executive Engineer of the DDA shall remain present at the site to hand over possession of the shop to the petitioner on the aforesaid date and time. No order as to costs.
V.K. JAIN, J OCTOBER 01, 2013/rd// W.P.(C) No.2163 of 2013 Page 4 of 4