Mayank Aggarwal, Puneet Mehta, ... vs D.D.A.
2002 Latest Caselaw 1458 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. Rule.

2. With the consent of learned counsel for the parties matters are taken up for final disposal.

3. A common question arises for consideration in four writ petitions from the refusal of respondent-DDA to allot shops to the petitioners who were the highest bidders in the auction held by the respondents.

4. On 28.3.2000, an advertisement was published offering shops/offices to be sold through tender. The tender forms were to be accepted on 18.4.2000 and were to be opened on 20.4.2000. The petitioners were successful bidders for different shops as under:--

CW No. 6954/2000: Shop No. 15 in CSC-6 Sector-7, Rohini, Phase-I CW No. 6957/2000: Shop Nos. 24-25 in CSC-3 Sector-7, Rohini, Phase-I CW No. 7319/2000: Shop No. 19, in CSC-6 Sector-7, Rohini, Phase-I CW No. 1742/2001: Shop No. 9, CSC-6 Sector-16, Rohini, Phase-I CW No. 1754/2001: Shop No. 7, CSC-3 Sector-7, Rohini, Phase-I

5. It may be noticed that along with the tender the petitioners had deposited 25% earnest amount and on being found to be the highest bidders, were asked to deposit the balance amount. The possession of the shops were, however, not handed over and in August, 2000 letters were sent by the respondent stating that on inspection it was found that area of the shop was more than mentioned in the allotment letters and thus three options were given to the petitioners as under:

(i) To pay difference in costs of the Unit based on tender rate.

(ii) To opt for a shop on the basis of the area as tendered for the same in adjoining market, if available.

(iii) If none of the aforesaid two options were acceptable, the Unit would be withdrawn and the entire money refunded including earnest money deposited.

Petitioners were asked to take decision within seven days.

6. The petitioners aggrieved by the said letter have filed the writ petitions for quashing of the said letters and for direction to the respondent to hand over possession of the shops and execute the conveyance deed. Petitioners have also sought compensation for financial loss as well as mental torture.

7. Learned counsel for the petitioner contends that once the bid of the petitioners was accepted and the petitioners deposited the full amount, it was not open to the respondent to vary the terms and conditions of the bid nor was it open to them to withdraw the shop from auction.

8. Learned counsel for the petitioners contends that in fact there was no mistake in the calculations of the area of the shops in question but these shops had a mezzanine and the same was now sought to be measured separately. It is contended that this has never been the past practice and in fact in shops where mezzanine existed, the same has not been counted towards the sq.feet area of the shop. In this behalf certain previous acceptances have been filed. These, however, relate to auction held in 1990. Learned counsel for the petitioners further contends that the sale of the shops was on as is where is basis.

9. In the counter affidavit filed by the respondent-DDA, it is stated that the quotations made by the respondents were for shops of particular sq.meter of area and the demand letters were also issued accordingly. However, on measurement, the actual shop area was much more. It is not disputed that same has increased on account of mezzanine floor area. In view thereof the three options were given to the petitioners but the petitioners did not exercise any of the three options. The reserve price of the shops in question were also mentioned accordingly in terms of the original area.

10. Learned counsel for the respondent further contends by reference to the averments in the counter affidavit that the petitioners have been treated at par with other tenderers and wherever such difference of area of shops was noticed, the bidders were uniformly asked to exercise one of the three options.

11. In view of the aforesaid reasons disclosed in the counter affidavit, the petitioners in their rejoinders have stated that mezzanine cannot be counted towards the floor area since the opening of the mezzanine is in the back portions of the shops and it is part and parcel of the ground floor not accessible from out side the shop in any manner. Reference has also been made to the details of terms and conditions of tender where para 2(1) is as under:-

"(i) The officer opening the tenders/Director (CL) may without assigning any reasons withdraw all or any of the shop/kiosk/office from the tender at any stage. The tender shall be for the office/built-up units are being sold on as is where is basis. It is presumed that the tenderer has inspected the property before giving tender." (emphasis supplied)

12. It is thus contended that it cannot be believed that the respondent was not aware of the size of the shops tendered which were open to inspection by the tenderer and the auction was on as is where is basis.

13. I have considered the submissions advanced by learned counsel for the parties.

14. The factual matrix is not in dispute to the extent that petitioners were highest bidders for the relevant shops in question and had deposited the full amount in pursuance to their bid. It is only thereafter that the respondents found that the measurements of the shops were different. It is also not disputed that the change in measurements is arising as a consequence of the mezzanine floor being counted towards the floor area. These shops were made available for inspection and sold on as is where is basis. The question, however, remains whether the decision taken by the respondent in terms of the impugned letters giving three options to the petitioners can be held to be illegal and invalid requiring the same to be quashed.

16. It may be relevant to note that the terms and conditions prescribed in para 2(vi) as under:

(vi) The confirmation of the highest tender shall be in the sole discretion of the Vice-Chairman DDA who doe snot bid himself to confirm tender and reserves to himself the right to reject all or any of the tenders without assigning any reason even if the highest tender is above and reserve price."

17. The aforesaid clause shows that there is option with the respondent to reject any of the tenders without assigning any reason. In the present case, however, a confirmation was sent of the acceptance of the bid and allotment letter issued.

18. The contention of learned counsel for the respondent is that what was, in fact, sought to be allotted and auctioned, was a shop of a different size and thus against the auction bid and the allotment letter of different size of a shop, larger shop cannot be allotted.

19. There is force in the submissions of learned counsel for the respondent. A similarly situation, though not relating to the area of the mezzanine, arose for consideration in CW No. 2719/2000, Delhi Medicos v. MCD and Ors. decided on 8.8.2002. In the said case also the area of the shop was found to be different and the auction was ordered to be cancelled. In the said case, however, there was no acceptance of the bid requiring the balance 75% of the amount to be deposited. The Court came to the conclusion that shop of higher size cannot be sold for a price of a shop of lesser floor area.

20. In the present case something more had happened by acceptance of the bid. That seems to be a reason that instead of withdrawing the shop from the auction, an option was given to the successful bidders in terms of the impugned letter.

21. It is rather un-fortunate that the respondent-Authority should have been so negligent in doing the needful prior to the auction. If the mezzanine had to be counted and total floor area had to be taken, the respondent should have taken due care before bid. This they did not do. However, as stated in the counter affidavit, uniformly a consistent decision has been taken in respect of such persons by giving them the options. The respondent cannot be compelled to allot a shop a higher floor area than the floor area sold, even though they have been negligent at the pre-bid stage.

22. I am of the considered view that the option to the petitioners is not unfair or unjust as would call for quashing of the impugned letter. The petitioners bid for a shop of a particular floor area. Option is being given to the petitioners to pay the difference in the costs of the unit based on tender rate option to opt for a shop on the basis of the area tendered in the adjoining market being available. The petitioners thus have the option to get a shop of the same floor area or pay proportionately more for it. In case neither of the options are acceptable, the money is sought to be refunded.

23. I am of the considered view that the auction of the shop on as and is where is basis cannot imply that a shop of different floor area size is being sold than what was auctioned and for which allotment was issued. The expression "sold on as is where is basis" would imply the situation and condition of the shops.

24. It is also relevant to note that example given by the petitioners of shops similarly sold with mezzanine is for the auction of 1990. It has not been disputed that the respondent has followed a consistent policy for the auction in question.

25. In view of aforesaid, I find no merit in the writ petition.

26. The last question, however, remains as to whether any direction should be passed taken into consideration the fact that tenderers did not exercise their option in pursuance to the impugned letters, the operation of which letter was stayed by interim order passed by this Court.

27. Taking into consideration the facts and circumstances of the case, I consider appropriate to direct that the petitioners may now exercise option in terms of impugned letters within a period of four weeks from today. In case the petitioners exercise the third option, petitioners will also be entitled to interest at the rate of 15% per annum from the date of deposit of the amounts till the date of receipt of the impugned communication asking the petitioners to give their options. This interest is being imposed in view of the fact that the money of the petitioners was blocked for the relevant period of time due to the fault of the respondent.

28. Writ petitions are dismissed with aforesaid directions leaving the parties to bear their own costs.