Ansal Properties And Industries ... vs Delhi Development Authority And ...
1991 Latest Caselaw 628 Del

JUDGMENT

Dalveer Bhandari, J.

(1) The petitioner is a builder in Delhi. A commercial plot No. 30, Nehru Place, District Centre, was put to auction by the respondent on January 19, 1982. The petitioner gave the highest bid of Rs, 8,13,80,000.00 and deposited 25% of the bid amount on the fall of the hemmer. The bid was accepted on February, 19, 1982, and the decision of acceptance of same was also communicated to the petitioner according to the terms and conditions of the auction the petitioner was supposed to deposit the balance of 75% of the bid amount within 90 days. It would be appropriate to set out the relevant terms and conditions of auction of the commercial plot No. 38, Nehru Place District Centre, New Delhi, in order to determine and arrive at the conclusion who has committed the breach of the terms of auction and fault in fact lies in whose quarter, Relevant terms and conditions of auction are set out as under:- 2. Bidding at Auction and submissions of application. (i).......... (ii) The highest bidder shall at the fall of hammer pay to the Delhi Development Authority through the officer conducting the office, 25% of the bid amount as earnest money either in each or by bank draft in favor of the Delhi Development Authority, or cheque guaranteed by a Scheduled Bank as "good for payment for there, months" in favor of the Delhi Development Authority. If the earnest money is not paid the auction held in respect of that plot will be cancelled." (vi) When the bid is accepted by the Dda, the intending purchaser shall be informed of such acceptance in writing and the intending purchaser shall within 3 months thereof, pay to the Delhi Development Authority, the balance 75% amount of the bid, in cash of by Bank Draft in favor of the Delhi Development Authority or by cheque guaranteed by a Scheduled Bank as good for payment for there months" in favor of the Delhi Development Authority. If the bid is not accepted. The earnest money will be refunded to the intending purchaser without any interest unless the earnest money is forfeited under para 2 (iv) above."

(2) It is the admitted position that the petitioner did not pay balance 75% amount of the bid till this date much less within the stipulated period.,

(3) The following submissions are set out which are based on the averments mentioned in the writ petition and oral submissions made during the course of the hearing of the case by Shri Kapil Sibal, appearing for the petitioner. It would be appropriate to briefly recapitulate the revival contentions of the parties before deciding the controversy involved in the case: (a) The case of the petitioner is that the plant submitted on August 12, 1985 were in consonance with the building bye-laws but have not been sanctioned seven after the lapse of severalyears; (b) The petitioner submitted that according to the building bye-laws, by virtue of 60 days having elapsed after submission of the building plans, under the deeming, provision, therefore, received the sanction of the Delhi Development Authority and consequently. Construction carried out by the petitioner ought to be considered in accordance with the rules and regulations. (c) It was the duty of the Delhi Development Authority to have obtained permission from the Delhi Urban Art Commission, hereinafter referred to as D.U.A.C. The issuance of any letter to the petitioner by the D.U.A.C. neither shifts the sole responsibility of the Delhi Development Authority nor in any way affects the provisions of the building bye-laws about deeming sanction of the plans. (d) According to the petitioner, the respondent Delhi Development Authority failed to company with the letters from the D.U.A.C. dated September 18, 1985, and September 24, 1985 and for the faults and lapses of the Delhi Development Authority, the petitioner cannot be made to suffer. (e) According to the petitioner, the Delhi Development Authority had submitted the plans for approval of the D.U.A.C. and further complied with the abovementioned three letters. The U.D.A.C. would have approved the plant but for the ban imposed by the Government of India pertaining to the height restrictions. (f) The petitioner submitted that because of the ban, the petitioner could not construct the multi-storied building within the stipulated period, and consequently, had to suffer heavily because of escalation in the cost of material and construction. (g) The terms and conditions of the contract are binding between the parties and could not be changed or varied unilaterally. (h) The imposition on ban by the Government of India, in fact. infringed the terms of the agreement between the petitioner and the respondent Delhi Development Authority. Therefore, it was for the Delhi Development Authority to have agitated before the Union of India that the ban cannot be made applicable retrospectively or at least to those category of cases, where the Delhi Development Authority has entered into the contract before the ban was imposed. Since the Delhi Development Authority has failed to perform its obligation and for its faults, the petitioner cannot be made to suffer. (i) Under Section 22 of the Delhi Development Authority Act. no such blanket ban order or direction can be given by the Government of India, and such a direction if given, not only infringes the petitioner's contractual rights, but is also violative of Article 14 of the Constitution. (j) The stand of the Delhi Development Authority that they were bound by the Union of India's decision imposing the ban is totally misconceived. (k) When plans were prepared and submitted according to the rules and bye-laws, then, they had to be approved and sanctioned. Rejection of the petitioner's plans was illegal and in no case, the plans could be rejected without providing an opportunity of hearing to the petitioner.

(4) The petitioner has also referred to and relied upon the Supreme Court decision reported as Municipal Corporation of Delhi Vs. Kishan Pass and another. . This case was cited for the proposition that the Commissioner has to sanction plans for erection of a building or the execution of a work, unless such building or work would contravene any of the provisions of subsection. (2) of Section 336 or the provisions of Section 340. It was further held that in order to sustain the validity of the order of rejection Passed by the Commissioner, the corporation has to establish that the proposed building or the use of the site for the building, would contravene the provisions of any other law and in case it does not contravene the provisions and bye-laws, then sanction has to be granted.

(5) The petitioner also relied on another case of the Supreme Court S.N. Rao others Vs. State of Maharashtra and others. . In this case, the Supreme Court came to the conclusion that permission cannot be refused merely because there was a proposal of the Municipal Corporation of Delhi for revision of the draft development plan of the area. We have carefully examined both these cases, and . in our openion, in the facts and circumstances of the present case, these cases have no application whatsoever.

(6) Shri Arun Jaitley, learned counsel for the Delhi Development Authority has strongly repudiated the averments and allegations made by the petitioner and urged that the respondent Delhi Development Authority in the instant case has consistently acted in accordance with the rules and regulations and the guidelines provided by the Union of India. On the contrary, the petitioner is solely responsible for grossly violating the terms of the auction. The consistent conduct of the petitioner has been to withhold the amount which is legitimately due to the respondent- Delhi Development Authority. Under the terms of the auction, the petitioner was under an obligation to pay within 90 days the remaining 75% of the bid amount. The amount which ought to have been paid in early 1982 has not been paid even after the lapse of more than 9 years.

(7) It may be pertinent to mention that the petitioner failed to comply with the terms of the auction. Again thereafter at the request and behest of the petitioner on July 23, 1985, an agreement with the Delhi Development Authority was entered into. In this agreement, it is mentioned that the suction purchaser "has represented to the authority that money market in relation to the land property, had fallen down tremendously during the past few months and it had become difficult to pay the outstanding amount to the authority in such a short time and, therefore, the condition regarding payment of the dues be relaxed and possession of the plot be handed over to him and he maybe permitted to construct the building thereon."

(8) Mutually agreed terms between the parties are set out as under :- "1. The Auction Purchaser shall have to pay within ninety days (90) from these presents such amount which would bring the total payment made equal to 50% of the bid amount. 2. That after paying 50% of the bid amount, the balance amount and the interest for the delayed payment of bid amount shall be payable by the Auction Purchaser in 5 (five equal half-yearly installments including interest calculated @ 18% per annum on the following dates: (i) First Installment - 15.11.1985 payable on (ii) Second Installment - 15.5.1986 payable on (iii) Third Installment - 15.11.1986 payable on (iv) Fourth Installment - 15.5.1987 payable on (v) Fifth Installment - 15.11.1987 payable on In clause (4) of the Agreement, if there was default in making the payment of any of these Installments, the bid would be liable to be canceled. Clause (4) is set out as under :- "(4) That if the Auction Purchaser commits default in making payment of any of the Installments as mentioned hereinabove, or other conditions, his bid shall be liable to be cancelled forthwith in which event earnest money as also the interest paid by him shall be forefeited."

(9) A bank guarantee was also executed on July 14, 1985. It was submitted that in pursuance to the Agreement, the petitioner did not pay even one full Installment till this date. The petitioned in all, after the said agreement on July 23, 1985, deposited Rs. 31,80,062.00 and Rs. 56,010.00 on August 12, 1985 for sanctioning of plan and further paid Rs. 15,00,000.00 on October 8, 1985. It is the admitted position that thereafter no payment whatsoever has been made by the petitioner. The petitioner not only committed breach of the terms of auction but has also committed breach of the agreement dated July 23, 1985 entered on his request and behest. The public authority i.e. the Delhi Development Authority even after the agreement entered into at its behest, did not even get full amount of one Installment. That clearly demonstrates the conduct of the petitioner. On one pretext or the other, amount which is legitimately due to the Delhi Development Authority has not been paid for several years.

(10) The petitioned filed another writ petition no.3067 of 1987 before this court seeking directions that the Delhi Development Authority may not encase the bank guarantee submitted by the petitioner. The prayer in the petition was that appropriated writ be issued quashing the invocation of the bank guarantee dated July 15, 1985 by the Delhi Development Authority.

(11) The division bench of this court on October 28, 1987 issued notice in the said petition and passed the interim order restraining the respondent from encasing the bank guarantee dated 15th July, 1985. The court also directed that the bank guarantee will be kept alive by the petitioner till further orders. The result of the interim order has been that the amount of the several cores, which is legitimately due to the Delhi Development Authority has been withheld by the petitioner.

(12) The respondent Delhi Development Authority has strongly repudiated the main plan of the petitioners submission with regard to the imposition of ban by the Union of India. According to the Delhi Development Authority, there was no illegality in imposition of ban by Government of India and on the contrary there was full justification of its imposition. The action of the Government of India imposing the ban was challenged by another builder of Delhi before this court. The division bench of this court in its well-considered judgment Skipper Construction Co. (P) Ltd. Vs D.D.A. and others, reported in Vol. , has approved the action of the Union of India imposing the ban.

(13) It was further urged by the respondent that in any event, ban imposed by the Union of India had no impact whatsoever on the petitioner. The construction activity of the petitioner remained unhampered. Even during the entire period when there was embargo of the ban, the petitioner admittedly carried on construction except for a brief period of three months.

(14) The case of the respondent-Delhi Development Authority is that the D.U.A.C. sought certain clarification vide its letter dated September 18,1985 from the petitioner within a period of 10 days failing which the proposal would not be considered. A copy of the letter was also sent to the Delhi Development Authority. According to the respondent, no reply to the said letter was given by the petitioner and the D.U.A.C. issued a reminder dated September 24, 1985 to the petitioner with a copy to the Delhi Development Authority. The petitioner for the reasons best known to him chose not to give any reply to this reminder of the D.U.A.C. also.

(15) While the petitioner's plans were pending with the D.U.A.C. and no decision could be arrived at because the D.U.A.C. did not receive any reply from the petitioner regarding certain clarification sought by the Commission. Meanwhile, the Ministry of Urban Development of the Union of India decided to stop construction of multi-storeyed buildings beyond 45 ft. height or above 4 stores falling in South Delhi and in New Delhi areas under the Delhi Development Authority, the Municipal Corporation of Delhi and the New Delhi Municipal Committee with the immediate affect when the Master Plan 2001 had been finalized by the Government order that no sanction for such constriction would be issued and work of those multi-storeyed buildings for which sanction had already been issued and work had not commenced or completed, instructions would follow. Long arguments were addressed on the imposition of ban by the Government of India. Therefore, it would be appropriate to set out the entire letter dated October 17, 1985 issued by the Government of India-imposing the ban and the same as set out as under:

"No.K-13011/19/85-DDIIA GOVERNMENT of India MINISTRY of Urban Development NEW Delhi, dated the 17.10.1985 Office memorandum

SUB:Stopping of multi-storeyed buildings in New Delhi including areas under Mcd and Delhi Development Authority in South Delhi till the Master Plan for 2001 has been reworked.

THE Government has decided to stop construction of Municipal Corporation of Delhi in New Delhi including areas under Delhi Development Authority and Municipal Corporation of Delhi falling in South Delhi, with immediate effect till the Master Plan for 2001 has been finalised. No new sanctions for such constructions should issue hereafter.

2. It is clarified that a multi-storeyed building may be taken as a building going beyond 45 feet or above four stores which has to be serviced by lifts.

3.Orders with regard to sanctions already issued where work on the multi-storeyed buildings has not commenced or completed, will follow.

4.Please acknowledge receipt.

SD/-

(S.K.Luthra) DESKOfficer REL.388708 SHRIP.P.Srivastav.

Commissioner.

MUNICIPAL Corporation of Delhi, Delhi.

SHRI Dharam Dutt, Administrator.

NEW Delhi Municipal Committee, New Delhi.

SHRI Prem Kumar, Vice-Chariman.

DELHI Development Authority. Vikas Minar, New Delhi.

SHRIR.V. Subramanian. Chairman.

DELHI Urban Arts Commission. New Delhi."

Admittedly, ban on the constriction of multi-storeyed buildings remained in force till February 8, 1988. Respondent No. 2, the D.U.A.C. by its letter dated November 20, 1985, informed the petitioner and the Delhi Development Authority, that in view of the directions of the Union of India, plans/proposals of the petitioner cannot be considered.

(16) The Delhi Development Authority vide its letter dated 19th December, 1985. informed the petitioner that his plans have been returned as it is because of the restrictions imposed by the Government of India. The Delhi Development Authority further vide letter dared January, 19, 1986 directed the petitioner to stop construction immediately till the plans are sanctioned finally failing which plans submitted by the petitioner would be returned as rejected, without any further notice. The petitioner submitted that he had submitted representation dated 23rd January. 1986 to the Delhi Development Authority against the said letter of 17th January. 1986. The Delhi .Development Authority vide its letter dated 25.3.1986 again informed the petitioner that his plans have been rejected as they have not been approved by the D.U.A.C. and they were going with the construction without sanction in spite of their instructions to stop the construction by their letter dated January 17. 1986. They were further asked to stop construction, otherwise the plans may be deemed as rejected. The petitioner did not adhere to the instructions issued by the Delhi Development Authority from time to time. Ultimately, the Delhi Development Authority had to send a strongly-worded notice dated June 18, 1986 by which the Delhi Development Authority had asked the petitioner to stop construction failing which the lease- would be canceled. The said notice is set out as under :-

"DELHI Development AUTHORITY NOTICE CBlock VIKAS Sadan (INA) NEW Delhi - 23 DATED:18/6/86 NO.F. 10(l)/85/Bidg.

To, M/S Ansal Properties & Industries (P) Ltd.

115,Ansal Bhawan 16,Kasturba Gandhi Marg NEW Delhi -1.

SUB:-Building plans in repeat of Plot No. 38, Nehru Place.

DEARSir/Madam,

WITH reference to your application dated x I have to inform you that stop the construction immediately otherwise action will be taken under lease conditions under inform attractor (CI), Dda, as building plans submitted by you has already been rejected.

(VISITINGhours: 3.00 P.M. To 4.30.P.M.)

(EXCEPT Sundays and Wednesdays)

YOUare, therefore, requested to stop the construction immediately failing the lease may be deemed as rejected.

YOURS faithfully

SD/-    

FOR Joint Director (Bldg)DDA   NEW Delhi."   

(17) It was urged on behalf of the Delhi Development Authority that without prior permission or clearance, the petitioner ought not have started constrcution. The petitioner had started construction without obtaining permission thought later on the petitioner carried out the construction on the strength of an interim order passed by this court while the matter was pending disposal before it. It was urged by the respondent Delhi Development Authority that there was no question of deemed sanction. The theory of deemed sanction which the petitioner has introduced, is in fact a subterfuge adopted by the petitioner to cover its lapse and illegality for carrying out construction without permission or sanction, before the petitioner obtained order from the High Court.

(18) It has also been submitted on behalf of the Delhi Development Authority that law courts cannot re-write terms of the agreement between the parties. This is the settled position of law and any deviation would result into illegality and consequently lead to miscarriage of justice.

(19) Shri Jaitley argued that the liability to pay the lease amount and interest thereon is a contractual obligation which the petitioner has to discharge, and the-same cannot be reduced or diminished, and this court cannot grant any relief under its extraordinary jurisdiction under Article 226 of the Constitution. In support of his submissions, the learned counsel placed reliance on the case decided by this Court, reported as Sanjeev Prakash and others Vs. N.D.M.C. . The well settled position of law that grievances arising out of the terms of the contract cannot be enforced by a writ petition, has been reiterated. Learned counsel for the Delhi Development Authority has also placed reliance on another division bench judgment of this court Jasjit Films (P) Ltd. and others. Vs. Delhi Development Authority and others. . In this case also, the Court has come to the conclusion that transaction is entirely in the realm of contract. The petitioner will have to file a suit to enforce the specific performance of the contract or to claim damages, by means of a civil suit. The writ petition is not a remedy for enforcing contractual obligation. The learned counsel has also drawn our attention to. another division bench case of this court Mangat Ram Vs. Delhi Development authority. . In this case, the division bench after following number of Supreme Court decisions came to the conclusion that cancellation for breach of the terms and conditions of the lease dead would purely be a contractual obligation and not a statutory one and hence it would not be open to the lessee to challenge the cancellation or in other words enforce the contractual rights in writ proceedings. These cases were cited to strengthen the submission that the petitioner cannot in dole the extraordinary jurisdiction of this court for breach of the terms of the agreement of contract. Interestingly, in the instant case, admittedly, the breach of the auction terms was committed by the petitioner and after having violated the terms of the auction, the petitioner has approached the court for the relief.

(20) The Learned counsel for the respondent has placed heavy reliance on the recent decision of this court in the matter of Skipper Construction C. (P) Ltd (supra). According to the respondent, the facts of the said case are fully applicable to the facts of this case. We have examined the said case closely. In this case, the court has taken note of some of the recent decisions of the Supreme Court and has held that the question as to whether the contractual obligation can be enforced through a writ petition, is still a grey area in the judicial remedies, although Supreme Court has of late, looked it from the point of view of natural justice, particularly, where the State or an instrumentality of the State is not a party. After a close scrutiny, we find that the facts of the said case are quite akin to the facts of the present case and the court after taking into consideration, came to the following conclusion :- "WEtherefore, reject all submissions made on behalf of the petitioner and hold that the D.D.A. is entitled to recover the entire amount of Rs. 8,12,68,789.00 as on 1.7.1990 in lump sum in cash or through bank draft. The decision of the Supreme Court in Dunlop (Supra) entitles the D.D.A. to insist upon cash payment and to reject the bank guarantee. Since there is a deliberate breach of the obligations under the License Deed and the Agreement dated 11.8.1987 by the petitioner legal consequences, as mentioned in term 15 of the license Deed, spring into action."

(21) The court also made observations regarding the conduct of the D.D.A. and has observed. "WE cannot part with this judgment unless we comment upon the extraordinary conduct of the D.D.A. amounting almost to the dereliction of duty as a public authority. In the numerous auctions of plots/flats which the D.D.A. makes every other day, the possession is never handed over unless the entire payment is received and leases are cancelled for non-payment of even on small Installment. In the present case, the possession was handed over to the petitioners when they had not cleared even the first Installment payable. The D.D.A. had with it the bank guarantee furnished under the Agreement dated 11.8.87 valid unto 15.9.1989 to cover all the instalements. There was no restraint order by any court of law in encashing the bank guarantees and recovering the huge amount of Rs. 9.72 cores. The Supreme Court in Dunlop case has held that government and its instrumentalities need cash for their administration and the governments cannot run on bank guarantees. But here is an extraordinary case where the D.D.A. refused to collect the said hague amount available to it under the bank guarantees. Thus, the D.D.A. has failed to male itself available crores of rupees which could have been utilized for discharge of its obligation to provide housing for weaker sections, low income groups and middle income groups of the society."

(22) In our opinion, the petitioner had also received extra indulgence from the respondent Delhi Development Authority is this case. The respondent had also drawn our attention to recent matter which has been disposed of by the Supreme Court Delhi Development Authority Vs. B..S. Bedi and others. Civil Appeal no. 798 of 1982 on October 19. 1990. The lads of the aforesaid case have bearing to the facts of the case in hand. In the said case, the Hon'ble Supreme Court made the follow ing observations :- WE have heard learned counsel for the parlies. Keeping in view the special facts and circumstance of the case, the High Court exercised the discretion in the interest of justice and extended the lime to enable the respondents to deposit the remaining 75% of the sale-price of the commercial-site in dispute within two months from the dale of the order Along with interest at the rate of 18% from 13.6.86. We see no reason to interfere with the High Court order. Keeping in view the innumerous escalated in the prices of commercial sites in Delhi, we are of the view that the interest of justice would be met if the respondents are directed to deposit the remaining 75% amount of the sale-price within eight weeks from today. The respondents shall also pay 18% p.a. interest from 13.6.86 till the dale the amount id deposited. The respondents shall also pay the restoration charge's to the DDA. We order accordingly. With the modification, the appeal is disposed of with no order as to costs.

(23) We make it clear the since the High Court granted relief to the respondents in the peculiar facts and circumstances of the case. the relief granted in this case shall not be a precedent for any other case. We further direct that the possession of the commercial sites be delivered to the resondetents within one month of the deposit of the amount. interest and the other charges as aforesaid."

(24) After the close of arguments, on the request of the parties, we granted them permission to bring on record certain documents and statements regarding actual amount due and amount paid. The petitioner as well as the Delhi Development Authority, filed some documents and statements, 'the Delhi Development Authority has produced on record two letters both sent by the Chairman of the petitioner company. In the letter sent on September 18. 1990. to the Vice-Chairman, of the Delhi Development Authority . the petitioner in para 2-A of the letter has clearly accepted its obligation to make outstanding payment to the Delhi Development Authority and the relevant portion of the said letter is set out as under :- "WE offer to make payment of the entire balance premium and interest thereon as claimed by the Delhi Development Authority exception the interest for the period convened by the ban i.e. 17.10.85 t0 8.2.88."

(25) Another letter which has been sent by the petitioner to the Vice- Chairman of the Delhi Development Authority is dated October 19, 1990. In para 3 of the said letter, it has been clearly mentioned that the petitioner is prepared to pay interest for the entire period, including/or the ban period. The relevant portion is set out as under :- "IN case the Delhi Development Authority insists that since the building has already come up under Court orders and, therefore, interest for the entire period including for the ban period must be paid by us then we also offer to make payment of interest for the ban period as well."

( 26) In this letter, the petitioner has mentioned that the payment of interest for the ban period will have to be in final settlement because the building then cannot be treated as unauthorised.

(27) In this view of the matter, there is hardly anything which the court has to determine except to direct the petitioner to pay the entire principal amount with interest at the rate of 18 per cent per annum forthwith. Even according to the petitioner's own documents, the petitioner had no case whatsoever. But on the strength of one interim order to the other, the petitioner with held the amount running in crores of rupees for a period of 9 years. The interest of 18 per cent which the Delhi Development Authority had demanded, cannot be said to be on higher side because there has been amendment to the Disposal of Developed Nazul Land. The relevant notification dated 31st January, 1989 is set out in toto, as under :-

"SHRIA.K.Guha, Director,(CL) DELHI Development Authority, VIKAS Sadan, New Delhi.

SUBJECT:Cases about delayed payment of 75% of the shop.

Iam directed to refer to your letter No, F.56(2)87-lmpl. dated 4.10.88 on the subject mentioned above and to say that a Gazette Notification has been issued amending the Delhi Development Authority (Disposal of Developed Nazul Land) Rules, 1981. According to the amendment, a proviso has been added to Rule 29 as under :- "PROVIDED that the Vice-Chairman, may extend the last date of payment, where he is satisfied that sufficient reasons exist for doing so, up to a maximum of 180 days subject to payment of interest on the balance amount at the rate of 18% per annum where the delay is 30 days or less and 25% per annum for a period exceeding 30 days."

Its presumed that the past cases will now be disposed of accordingly as the stand of Delhi Development Authority has been that such cases are to be dealt with under Delhi Development Authority (Disposal of Developed Nazul Land) Rules, 1981, rather than Delhi Development Authority (Management and Disposal) of housing Estates) Regulations, 1968.1 am to request to confirm this.

YOURS faithfully.

SD/-    

(RAJINDERSINGH)    UNDER Secretary (DD)"   

(28) According to this, the minimum rate of interest is 18 per cent per annum where the delay is 30 days or less and 25 per cent annum for- a period exceeding 30 days. Therefore, in any event, what the Delhi Development Authority is demanding from the petitioner, the interest at the rate of 18 per cent per annum even after the delay of several years. This certainly is extra consideration and indulgence shown by the Delhi Development Authority to the petitioner.

(29) The respondent Delhi Development Authority has submitted a calculation chart before this court. According to that, up to 31st August, 1991, the total amount due is Rs. 15,48,88,262.45p. The chart in toto is set out as under:- 1.(a) Total Bid amount Rs. 8,13,00,000.00 (B)Amount paid as Earnest MONEY on 19.1.82 (25%) Rs. 2.03.25,000.00 (C)Balance 75% of the premium which was Rs. 6,09,75,000.00 REQUIRED to be paid by 16.5.1982 2.Total amount paid: EARNEST Money 19.1.1982 Rs.2,03,25,000.00 02.1.1985Rs.2,03,25,000.00 23.7.1985Rs. 31,80,062.00 08.10.1985Rs. 15,00,000,00 TOTAL Paid Rs.4,53,30,062.00 3(A)After receipt of 50% premium of the plot, the next 50% premium was allowed to be recovered in five equal Installments as follows :- 1STInstallment Rs-1,66,58,826.00 DUE on 15.11.85 2NDInstallment Rs.l,66,58,826.00 DUE on 15.5.86 3RDInstallment Rs.l,66,58,826.00 DUE on 15.11.86 4THInstallment Rs.l,66,58,826.00 DUE on 15.5.87 5THInstallment Rs.l,66,58,826.00 DUE on 15.11.87 TOTALRs.8,32,94,133.00 (B)Paid under 1st Installment Rs.31,80,062.00 RS.15,00,000.00 Rs.46,80,062.00 BALANCE premium of Rs.7.86,14,071.00 Installments 4.Interest charge for belated Installments worked [email protected] 18% interest p.a. up to 31.8.1991 Rs.6,69,62,222.00 RS.14.55.76,293.00 5.COMPOUNDINGfees Rs.93,00.000.00 6.Composition fee for BELATED construction up to24.5.90 Rs. 11,969.45 TOTAL dues Rs. 15,48,88,262.45

(30) After considering the pleadings of the parties, documents on record and submissions made before this court, it is absolutely evident that the petitioner has been consistently making defaults in payment of the amount due to the Delhi Development Authority on one pretext or the other. According to the terms of the auction, the petitioner's bid was accepted on February 19,1982 and the petitioner was supposed to deposit the balance 75% of the bid amount within 90 days. The amount which ought to have been deposited with the Delhi Development Authority way back in 1982 has not been deposited till this date. Furthermore, at the request of the petitioner, the Delhi Development Authority entered into an agreement with the petitioner. This agreement was entered into because the petitioner pleaded grave financial difficulty and according to the agreement, the first Installment had to be deposited by the petitioner on or before November 15, 1985 and all subsequent installments on or before 15th November, 1987.

(31) Astonishingly, till this date, not even one full Installment has been deposited by the petitioner. Looking to the entire past conduct of the petitioner, no indulgence would be at the cost of public money. The chequered history of this case reveals that even the Delhi Development Authority has been extremely indulgent to the petitioner and that generosity of the Delhi Development Authority has been at the expense of public money. Apparently, on the one hand, the Delhi Development Authority does not have sufficient funds to carry out its housing programme for the relatively weaker sections of the society, but on the other hand; the Delhi Development Authority did not care to collect cores of rupees from the petitioner and some other builders reference of whom has been made in the case of Skipper Construction Co. (P) Ltd. (supra). Even in the agreement of July 23, 1985, clause (4) of the agreement says:- "(4) That if the Auction Purchaser commits default in making payment of any of the installments as mentioned hereinabove, or other conditions, his. bid shall be liable to be cancelled forth with in which event earnest money as also the interest paid by him shall be forested."

(32) The inaction of the Delhi Development Authority has led to loss of several crores for several years for the Delhi development Authority - a public authority. The Delhi Development Authority event after the default has nor uncashed the bank guarantee immediately to secure its interest. Later on, of course, the petitioner approached the court and obtained the interim order restraining the Delhi Development Authority from encashing the bank guarantee. The Delhi Development Authority and such other authorities must adhere to certain norms. The public interest ought to be the paramount consideration while taking every decision by the public authories.

(33) In the instant case, we have been called upon to deal with the situation where 16-storeyed building stands constructed according to the building bye-laws, but without receiving sanction of the building plans by the concerned authorities. Hundreds of persons have invested almost their life-time savings in the hope of getting a roof over their heads with the petitioner. They are waiting to get their apartments for several years inspite of having paid the amount. The Delhi Development Authority has to recover cores of rupees from the petitioner, in these peculiar facts and circumstances of this case, we have to work out the formula which is just fair and equitable to all concerns.

(34) We have carefully considered the facts and the issues involved in the case. It would be appropriate to dispose of these writ petitioners with these directions:- (i) The petitioner is directed to pay the balance outstanding amount due to the Delhi Development Authority, including interest at the rate of 18% p.a. within a period of two months from today. (ii) The respondent -DDA would be entitled to encase the bank guarantee furnished by the petitioner. The amount recovered by encasement of bank guarantee from the petitioner would stand adjusted from the total outstanding amount. (iii) On the petitioner's making the entire payment, the respondent shall sanction the building plans forthwith and in no case later than one month of receiving the entire outstanding amount from the petitioner. (iv.) Thereafter the petitioner shall apply for the grant of occupancy certificate as per rules, if not already applied.

(35) The respondent D.D.A. shall grant necessary certificate as per rules without any delay but in any event not later than two weeks from the date of the petitioner's submitting application pertaining to occupancy certificate.

(36) Subject to these directions, both these writ petitioner are dismissed. Counsel's fee is assessed at Rs. 5,000.00 . It is made clear that it the petitioner fails to comply with the above directions, the respondent shall be at livery to take necessary action as permissible according to law.

(DALVEERBHANDARI) --- *** ---

JUDGE OCTOBER1991, (D.P.WADHWA) Judge