M/S.Evergreen Estates And ... vs Municipal Corporation Of Delhi
2008 Latest Caselaw 1138 Del

                         Unreportable
           IN THE HIGH COURT OF DELHI AT NEW DELHI

                 +RFA (OS) No.12/1983 and 14/1983

                                              Reserved on: 09.07.2008
                                           Pronounced on: 25.07.2008


#M/s. Evergreen Estates and
Exhibitors and Others                ....Appellants in RFA(OS) No.12/83

M/s.Vandana Construction Co.
(P) Ltd.                             ....Appellants in RFA(OS) No.14/83

!                                    Through: Mr.V.N. Kaura, Sr. Adv.
                                     with Ms.Anjali Chopra

                   Versus

$Municipal Corporation of Delhi
& Anr.                               .....Respondent
^                                    Through Mr.Sandeep Sethi, Sr. Adv.
                                     with Mr.Sanjeev Sabharwal and
                                     Mr.Alok Singh

CORAM :-
*THE HON'BLE MR.JUSTICE A.K.SIKRI
THE HON'BLE MR. JUSTICE MANMOHAN SINGH

      1.Whether Reporters of Local papers may be allowed to
        see the Judgment?
      2.To be referred to the Reporter or not?
      3.Whether the judgment should be reported in the Digest?

A.K. SIKRI, J.

:

1. The appellants in these two appeals are M/s.Vandana

Construction Company Pvt. Ltd. (hereinafter referred to as the

„Vandana Construction‟) and M/s. Evergreen Estates and

Exhibitors (hereinafter referred to as the „Evergreen Estates‟).

Their suits for recovery of amount have been dismissed by the

learned Single Judge.

2. The two suits had almost identical factual foundation. That was

the reason that the two suits filed by these two appellants were

clubbed together with the direction that evidence would be

recorded in one suit, which would be read as evidence in the

other suit. Identical issues were framed which came to be

decided by the common judgment and decree dated 9.3.1983

passed in the two suits, whereby both the suits have been

dismissed. Precisely, for this reason these two appeals were

clubbed and heard together.

3. For the sake of convenience we shall proceed on the basis of

facts as they appeared in the suit filed by M/s.Vandana

Construction without any fear of contradiction in basing the

judgment in the other case also taking note of the said facts.

4. The cases relate to putting at auction some commercial plots by

the respondent-Municipal Corporation of Delhi (hereinafter

referred to as the „Corporation‟), situated at the Najafgarh Road

in the Community Centre opposite to Milan Cinema, Karampura

on perpetual leasehold basis. Auction was to be held on

26.12.1976. Much earlier to that, vide Notification dated

24.3.1975, the Corporation was superseded by the Government

of India. Following that supersession, another Notification dated

24.3.1975 was issued appointing the Commissioner of the

Corporation to exercise the powers and perform the duties

conferred and imposed upon the Corporation by or under the

Delhi Municipal Corporation Act or any other law with the

direction to the said Commissioner that he shall exercise such

powers and perform such duties in addition to his own powers

and duties conferred and imposed upon him by or under the said

Act. Needless to mention, armed with the said Notification the

Municipal Commissioner issued the auction notice.

5. The appellant--Vandana Construction gave its bid of

Rs.15,15,000/- in respect of Plot No. A-1 admeasuring 576 sq.

yards which was found to be the highest in the said auction held

on 26.12.1976. On the fall of hammer this appellant deposited

Rs.3,78,750/- being 25% of the total bid amount. The plot was

meant for construction of a four storey commercial-cum-office

flat/shop building.

6. Bid of the other appellant in respect of plot No. A-3 admeasuring

576 sq. yards in the Najafgarh Community Centre at

Rs.17,51,000/- turned out to be the highest. That appellant also

paid a sum of Rs.4,37,750/- being 25% of the total bid amount.

The purpose for which this plot was to be utilized was the same

as the other plot.

7. The bids were subject to the acceptance by the competent

authority and both the appellants received separate letters dated

3.1.1977 informing that their bids had been accepted by the

Corporation. They were called upon to pay the balance of 75%

bid amount within two months. Further demand for payment of

advance sum of Rs.37,875/- and Rs.53,775/- respectively was

made qua ground rent for the first year within the aforesaid

stipulated period. It was categorically mentioned in these letters

that in case the payments are not made within the time granted,

earnest money deposited would be forfeited. Both the appellants

though initially asked for extension of time citing certain

reasons, which would be noted at the relevant time, but

thereafter gave legal notices stating that bids were required to

be treated as cancelled and demanded back their money. The

Corporation treated this as non-payment of the residual amount

and vide letters dated 17.2.1978 issued to both of these

appellants their initial deposits were forfeited.

8. Challenging the aforesaid forfeiture, both the appellants filed the

two suits in question. Challenge was predicated on number of

grounds. The Corporation contested both the suits by filing its

written statements refuting the various allegations made by the

appellants in their plaints. On the exchange of these pleadings,

one issue each specific to both the suits was framed and as many

as 18 common issues were framed. All these read as under:-

"Issue No.1 in S.No.1252/78

1. Whether the plaintiff is a partnership, duly registered under the Indian Partnership Act? If not, its effect? O.P.P.

Issue No.1 in S.No.1252/78

1. Whether the plaint is duly signed, verified and instituted by the duly authorized person? O.P.P.

Common in both suits

1. Whether the suit is barred under Section 478(2) of Delhi Municipal Corporation Act? O.P.D.

2. Whether M.C.D. was owner of the plot in suit on 26th December, 1976 and was entitled to transfer it and pass a valid title to the purchaser? O.P.D.

3. Whether the defendant represented at the time of the auction of the land in question or in advertisement that it was duly developed, modern and well-planned and if so, to what effect? O.P.P.

4. Whether the defendant gave an assurance that the unauthorized shopkeepers and stall holders carrying on business in non-conforming areas would not be allowed to ply their respective trades? O.P.P.

5. Whether the bid of the plaintiff was accepted by a duly authorized person on behalf of the defendant? O.P.D.

6. Whether the defendant was not entitled to demand payment of ground rent? O.P.P.

7. Whether the demand of ground rent was a counter offer, which was not accepted by the plaintiff and as such no binding contract come into being? O.P.P.

8. Whether the complex had not been developed by the defendant in accordance with the provisions of Master Plan, if so, what is its effect? O.P.P.

9. Whether the plaintiff withdrew its offer before a binding contract came into being, if so, to what effect? O.P.P.

10. Whether the transaction was vitiated by fraud and misrepresentations? O.P.P.

11. Whether the forfeiture of 25% of the bid deposited is penal and the plaintiff is entitled to be relieved against it? O.P.P.

12. Whether the plaintiff is entitled to interest? If so, at what rate? O.P.P.

13. Whether the defendant is entitled to forfeit 25% of the bid deposited by the plaintiff at the conclusion of the auction? O.P.D.

14. Whether the agreement to sell, contravenes provisions of Delhi Municipal Corporation Act? O.P.D.

15. Which of the parties committed breach of the contract and to what effect? O.P.P.

16. Whether the plaintiff was ready and willing to perform the part of the contract at all relevant time? O.P.P.

17. Whether the plaintiff is stopped from filing the suit for the reasons stated in paragraphs 8 and 9 of the written statement? O.P.D.

18. Relief."

9. The two individual issues were decided in favour of the

appellants herein. Likewise, issues No.1 and 17, common in

both the suits, were also decided in favour of the plaintiffs. We

are not concerned with their findings in this appeal. Suffice it to

state that on the basis of these findings both the suits were held

to be properly instituted. Out of the common issues other issues

are decided in favour of the respondent herein which led to the

dismissal of the suit. Findings on all these issues can be

capsulated in three compartments. That was, in fact, the manner

in which Mr.V.N. Kaura, learned senior counsel appearing for the

appellants, argued these appeals. He challenged the findings of

the learned Single Judge by making the following three

propositions:-

i. Since the Corporation had been superseded under the

provisions of Section 490 of the Delhi Municipal

Corporation Act, effect thereof was that the property

of the Corporation vested in the Central Government.

Because of this legal position, the Municipal

Commissioner was not empowered to dispose of the

property of the Central Government without being

infested with specific power in this behalf.

ii. There was no concluded contract between the parties

inasmuch as while accepting the bid of the appellant

vide letters dated 3.1.1977, the Corporation had

raised the demand for payment of advance ground

rent as well, which was not payable as per the terms

and conditions of the auction. Therefore, it was a

conditional acceptance which amounted to counter

offer. As this counter officer was not accepted by the

appellants, no binding contract came into place, and

in these circumstances, it was not open to the

Corporation to forfeit the earnest money which

should have been refunded.

iii. The Corporation had represented at the time of

auction that the land in question was duly developed,

modern and well-planned and on this representation

of the Corporation the appellants had given their

bids. When it was found that there was no proper

development and even there were encroachments on

or around the plot area, it was not possible to

construct the building as envisaged in the auction

and because of this fraud and misrepresentation on

the part of the Corporation, the transaction stood

vitiated. On this basis it was submitted that issues

No.4, 5 and 11, which touched this aspect, were not

correctly decided by the learned Single Judge, as in

the process, he ignored the vital evidence as well as

material placed on record and also misdirected

himself in analyzing the evidence.

10. We now proceed to discuss these submissions in detail.

EFFECT OF DISSOLUTION OF THE CORPORATION:

11. It was submitted by the learned counsel for the appellants

that by Notification No.38 of the Government of India, Ministry of

Home Affairs dated 24.3.1975 published in the Gazette

Extraordinary of that date, made under Section 490 of the DMC

Act, 1957, the Corporation was dissolved and under sub-section

2 all property of the Corporation vested in the Central

Government. On the date of auction (i.e. December 26, 1976),

the property remained vested in the Cental Government and not

in the Corporation and the Corporation was not competent to

auction the same. It was further submitted that though

Notification dated 24.3.1975 was issued authorizing the

Municipal Commissioner to perform the duties conferred and

imposed upon the Corporation by the DMC Act, there was no

specific power to deal with the properties of the Corporation as

on that date, with the supersession of the Corporation, the

property of the Corporation vested with the Central Government

by virtue of clause (c) of sub-section (2) of Section 490.

Therefore, specific delegation in favour of the Commissioner was

necessary to deal with the property of the Central Government.

It was submitted that what had been delegated to the

Commissioner was the right to exercise powers of the

Corporation and not to transfer the property which stood vested

in the Central Government. In the absence of any such specific

delegation, any auction of the property or acceptance of the bid

on behalf of the Corporation is irrelevant and is non-est.

Learned counsel also referred to the provisions of Articles 298

and 299 of the Constitution of India as per which, specific

delegation in this behalf was needed and in support relied upon

two judgment of the Supreme Court and one of the Calcutta High

Court, particulars whereof are as under:-

i. Union of India v. N.K. Pvt. Ltd. & Ors. AIR 1972 SC

ii. Union of India v . M/s. Hanuman Oil Ltd. 1987 (Suppl.) SCC 84.

iii. Mahabir Prasad Lilha v. Purulia Electric Supply Corporaiton AIR 1958 Calcutta 661.

12. As this was precisely the argument before the learned Single

Judge also, it would be appropriate for us to find out as to how

the issue is dealt with by the learned Single Judge:-

"It is not disputed by the plaintiffs that before the supersession of the Corporation, the site in dispute was held by the Corporation. The entire case is based on the provisions of Section 490 (2) (c) which says that when the Corporation is superseded, all property vested in the Corporation shall, until it is reconstituted, vest in the Central Government. It is true that by the force of the statutory provisions, all property earlier vested in the Corporation is vested in the Central Government. On the reconstitution of the Corporation, there is an automatic revesting in the Corporation. Section 490(2)(b) also says that when Corporation is superseded, then during the period of supersession of the Corporation, all powers and duties conferred and imposed upon the Corporation by or under the Act or any other law shall be exercised and performed by such officer or authority as the Central Government may appoint in that behalf. The Central Government by notification dated March 24, 1975, Ex-D-10 appointed the Commissioner of the Corporation to exercise the powers and perform the duties conferred

and imposed upon the Corporation by or under the Act or any other law and directed that the Commissioner shall exercise such powers and perform such duties in addition to his own powers and duties conferred and imposed upon him by or under the Act. Section 200 of the Act deals with the disposal of the property. The Commissioner may, with the sanction of the Corporation, lease out property. The Commissioner was exercising the powers of the Corporation by virtue of the notification, Ex. D-10. The Corporation had power to grant a lease in perpetuity of any immovable property. Even though the property vested in the Central Government, the Central Government by notification, Ex. D-10 had specifically empowered the Commissioner to exercise the powers and perform the duties of granting a lease in perpetuity of any immovable property. This is what the Commissioner intended to do when he auctioned the leasehold rights. The power had clearly been conferred on the Commissioner in spite of the fact that the property of the Corporation had vested in the Central Government. Issue No.3 is held against the plaintiffs."

13. We are in agreement with the aforesaid findings and

observations of the learned Single Judge and the manner in

which the same are arrived at. Section 490 of the Delhi

Municipal Corporation Act empowers the Central Government to

supersede the Corporation. Since Delhi is the Union Territory, it

is for this reason that on supersession of the Corporation, rights

are given to the management and assets of the Corporation vests

in the Central Government. However, the Corporation has to

function as it cannot be brought to standstill. When the

Corporation is superseded the Corporators cease to hold their

office. For the Corporation to function even after the

supersession, sub-section (2) of Section 490 authorises the

Central Government to empower any officer or authority to

discharge all powers and duties of the Corporation. Once such

notification is passed authorizing a particular officer, he can be

conferred with "all powers and duties conferred and imposed

upon the Corporation by or under this Act" to be exercised by

such an officer or authority. In the present case, the

Commissioner was specifically given all these powers as is clear

from the Notification dated 24.3.1975 which we reproduce

below:-

"No. U-13021/17/75-Delhi (ii) in exercise of the powers conferred by sub-section 2 of section 490 of the Delhi Municipal Corporation Act 1957 (66 of 1957) read with the order of Govt. of India in the Ministry of Home Affairs No.U-13021/17/75 Delhi (i) dtd. 24.3.1975, superseding the Municipal Corporation of Delhi, the Central Government hereby appoints the Commissioner of the Municipal Corporation of Delhi to exercise the powers and perform the duties conferred and imposed upon the Municipal Corporation of Delhi by or under the said Act or any other law and directs that the said Commissioner

shall exercise such powers and perform such duties in addition to his own powers and duties conferred and imposed upon him by or under the said Act."

14. If the Corporation functions normally, without supersession, it

has power to dispose of the assets. There is no dispute about it.

Once such power given to Corporation under the Act is now to

be discharged by the Commissioner, he will be authorized to

exercise power with regard to the property of the Corporation

also. Clause (c) of sub-section (2) of Section 490 has to be read

in that context.

15. Once we read the provisions in the manner stated above, the

judgment cited by the learned counsel for the appellants would be

inapplicable. The principle of law laid down in the said cases is that

there has to be a specific delegation in favour of an authority to Act

on the part of the President as per the requirement laid down in

Articles 298 and 299 of the Constitution. We are of the opinion

that in the present case, specific delegation was given by the

aforesaid Notification. Therefore, we uphold the finding of the

learned Single Judge on issue No.1.

WHETHER CONCLUDED CONTRACT CAME INTO EXISTENCE:

16. This aspect touches issues No.7, 8 and 10 and the basis of

the argument of the learned counsel for the appellants is that it

was not proper and/or permissible for the Corporation to

demand payment of ground rent and further that making such a

demand amounts to counter offer, which was not accepted by

the appellants and as such, no binding contract came into being.

In this behalf, Mr. Kaura submitted that it was represented to the

appellants that no ground rent would be charged for the first

three years and in spite of this, in the letter of acceptance

ground rent was demanded. Even terms and conditions of the

auction did not contain any provision for advance payment of

ground rent. In support of this, PW-3 and PW-5 were produced

as witnesses by the appellants who asserted that such a

representation was that no ground rent would be charged.

Learned counsel also sought sustenance from the statement of

the respondents‟ witness Mr. R.D. Aggarwal (Assistant

Commissioner Remunerative Project), who appeared as DW-1 and

stated as under:-

"I do not remember if the assurance was given at the time of auction that ground rent for three years would not be charged if the DDA was not doing so. I do not remember if the DDA was not charging ground rent for the first three years during that period. The question if exemption should be given for ground rent for three years was under examination. Ground rent was not demanded of the plaintiff. The question of demanding ground rent would not, however, arise until they paid the balance of the

amount and become owner of the property..... By Ex. D-1, we had demanded from the plaintiffs the balance of the premium as well as ground rent for the first year. This is, therefore, correct that even though the question of exemption of ground rent for three years was under consideration, the plaintiffs were required to deposit ground rent in advance for the first year."

"The resolution was as proposed by the Commissioner in his letter of December 28, 1977."

17. It was further argued that the findings of the learned Single

Judge that the Corporation was fully within its right to demand

ground rent in accordance with the terms and conditions of the

auction and that forfeiture was, in any case, not on account of

non-payment of ground rent, was not correct. In this behalf, Mr.

Kaura submitted that the learned Single Judge failed to consider

the undisputed representation made at the time of bid that

ground rent would not be charged for three years, which made

the demand for ground rent and the forfeiture of the 25%

payment made for the plot contrary to such representation. The

terms and conditions of auction did not contain any provision

that the ground rent would be payable in advance together with

the balance price of the plot and that 25% would be forfeited if

the advance ground rent was not paid. The demand for advance

ground rent and the forfeiture of the 25% advance for its non-

payment was, therefore, contrary to the terms and conditions of

the auction. His further submission was that even clauses 2, 3

and 6 of the terms and conditions of the auction, which related

to making of 25% of the bid amount at the fall of the hammer

and balance payment on the acceptance of the bid, did not

mention about the payment of ground rent.

18. It was submitted that such a ground rent could be claimed

only after three years. But in the acceptance letter along with

balance premium advance ground rent was also demanded. It

was argued that the appellants had withdrawn their bid vide

letter dated 1.7.1977 not accepting the aforesaid new condition

and therefore, no contract came into existence.

19. We are of the opinion that the appellants have no case or

merit on this aspect as well and the findings of the learned

Single Judge are without blemish. The argument of the learned

counsel for the appellants flows on the assumption that demand

of ground rent amounted to counter offer as it was a new

condition imposed. At the outset, we may point out that from

clause 6(III) of the Terms and Conditions itself that there was a

provision for ground rent and therefore, it cannot be said that

any new condition was imposed. It is clear from the reading of

this clause. Clause 6(III) of the terms and conditions related to

ground rent was in the following terms:-

"III. Ground Rent

In addition to the premium referred to above the purchaser of the leasehold rights in the plot shall be bound to pay ground rent at the annual rate of 2½ per cent of the amount of the premium."

20. Secondly, the contention is that this ground rent could not

have been demanded as it was agreed that ground rent would be

payable after three years. Admittedly, there is no such

stipulation in the terms and conditions and the case of the

appellant was that the oral assurance was given in this behalf

which is neither here nor there in view of specific terms and

conditions contained in writing on which the plots were

auctioned. Nobody could have given such an oral assurance de

hors or against the specific terms and conditions. Furthermore,

it needs to be necessarily pointed out that this was not even the

case set up by the appellants at any stage prior to filing of the

suit. After the appellants received letter of acceptance in which

ground rent was also demanded, the appellant, though gave

specific reply thereto, it was never its case that such a condition

amounted to counter offer. Some difficulties were pointed out

on the basis of which there was a request for extension of time

in depositing the balance amount. Lastly, and that clinches the

issue, the forfeiture ordered on 17.2.1978 is not on account of

non-payment of ground rent. We may sum up discussion on this

aspect by reproducing the following portion of the judgment of

the Single Judge with which we agree:-

".....Until the exemption was granted by the Corporation, the Corporation was fully within its right to demand the ground rent in accordance with the terms and conditions of the auction. However, this fact is wholly inconsequential in this suit. The forfeiture ordered on February 17, 1978, Ex.X-4 and Ex. D-2 is not on account of non-payment of ground rent. Letters, Exs. X-4 and D-2 say that since the plaintiffs have failed to deposit the balance premium within the stipulated period as such the earnest money deposited on December 26, 1976 had been forfeited as per Commissioner‟s order dated February 14, 1978 as per terms and conditions of auction."

21. Therefore, we do not find any merit in this contention as well.

WHETHER THERE WAS ANY MISREPRESENTATION OR FRAUD ON THE PART OF THE CORPORATION.

(ISSUES No.4, 5 and 11)

22. It was pointed out by Mr. Kaura that in the plaint specific

averments were made that there was a representation given to

the appellants as well as other bidders that MCD had developed

commercial plot at the said site, where all amenities were

provided and it called it as "well-planned", "modern Community

Centre". Similar assurance was given just prior to the said

auction held on 26.12.1976 and believing these representations

the appellants had participated in the auction and gave their bid.

However, Mr. Kaura, in addition to the appellants‟ evidence, also

referred to the statement of DW-1 in support of his submission

wherein he had said as under:-

"The Superintending Engineer of the Corporation will be able to say if the area has since been developed in accordance with the plan Ex. P.W. 3/4 .... There were some unauthorized khokhas near Milan cinema at the material time."

"It appears from the copy that there must have been a press statement by the Commissioner with regard to the action for misuse of the land ..... I cannot say with reference to the plan as to where the wooden khokhas which are referred to in my letter (Ex. D-6) would be. There were wooden khokhas on the footpath on the right of way but I cannot give dimension. There may be wooden khokhas on the site even now."

" .....I am unable to say for how long the khokhas extended on the road from Najafgarh Road to Milan Cinema."

".....I do not know when the development work commenced."

23. From the evidence of PW-2, Mr. Kaura pointed out that it was

accepted that water main scheme had been approved and actual

work started on 11.6.1977 and completed on 9.11.1977. The

sewage work was completed only in February, 1978. For

electricity, DESU was paid requisite amount only in April, 1978,

which would show that there was no development. It was further

submitted that the finding of the learned Single Judge that no

representation was made by the Corporation that the site was

fully developed was not correct inasmuch as, the Corporation

had given wide publicity that it had developed commercial plot

describing the same as "well planned modern Community

Centre". In these circumstances, argued the learned counsel, it

was open to the appellants to rescind the contract as held by the

Supreme Court in Syed Isran Masood v. State of Madhya Pradesh,

AIR 1981 SC 2010.

24. This contention of the learned counsel for the appellants

referring to the statements of certain witnesses by picking them

in bits and pieces would not advance the case of the appellants.

In the first place, it is to be noted that the appellants and all

other bidders were given an opportunity to inspect the site

before making their bids. The appellants, therefore, knew very

well the site conditions. For this reason itself such a plea raised

by the appellants would be untenable. Further reading of

testimony of the respondents‟ witnesses in entirety would clearly

reveal that it was categorically asserted that no assurance was

given to any one at any stage that area was fully developed. The

learned Single Judge has discussed the testimony of DW-1, Mr.

R.D. Aggarwal, Assistant Commissioner (Remunerative Project

Cell) at the relevant time. He deposed that Ex. PW-3/4 was the

approved plan of the project and this was approved by the

Corporation on 15.12.1976. After the approval, the project was

advertised in the Press. He also categorically stated that he was

present at the time of auction and terms and conditions of the

auction were read out to the bidders. He specifically stated that

there was no other terms or oral assertions apart from those

contained in the Terms and Conditions to the auction notice. His

testimony remained unshaken. The learned Single Judge found

his statement to be credible with no reason to disbelief and we

agree with the Court below. It is more so when it is supported

by documentary evidence; the terms and conditions of the

auction were reduced into writing; and the case of the appellants

is based on purported oral assurances which cannot be easily

accepted. Moreover, the appellants‟ own witness PW-3 has

admitted that he had gone to the office of the Corporation to

inspect the plan and had also purchased a copy of the site plan

(Ex. PW-3/4). This site plan gives details of the plots meant for

shop-cum-office plots, stalls, kiosks and Restaurants. The lay

out plan carves out the roads for giving access to the plots into

which the land has been divided. Thus, the representation made

is that it was a "well planned" site and there was no such

representation that it was a "developed" site. The learned Single

Judge has brought out this distinction in an erudite manner

which is clear from the following:-

"Secondly, the auction notice is Ex. PW-3/3/D-

9. It mentions the auction of commercial plots in modern well-planned, Najafgarh Community Centre (Opposite Milan Cinema). There is a distinction between the representation of "well planned" and "developed". The terms and conditions of the auction, Ex. D-8 do not contain any representation that the commercial plots being given on perpetual lease hold basis are fully developed. "Planned" and "Developed" are two distinct stages and are not to be mixed up."

25. There are various other reasons given by the learned Single

Judge in negativing the contention of the appellants as is clear

from the following discussion:-

"Thirdly, the press report, Ex. PW-1/1, refers to the Gaffar Market in the Karol Bagh and the Community Centre at Karampura and Shopping Centre at Bhai Parmanand Nagar. So far as the Gaffar Market in Karol Bagh Area is concerned, it does state that the "civic body has developed a shopping centre with all amenities. So far as the Community Centre at Karampura is concerned, there is no such representation. There is a change

in the language employed in respect of Gaffar Market and Community Centre at Karampura. Shri B.R. Tamta had only said that the Community Centre at Karampura offers opportunities to members of the business community. Even at that stage the lay out plan had not been approved by the Corporation. The language used does not say that it is a well-planned community centre at Karampura. Fourthly, even after the auction and when the bid acceptance was communicated to the plaintiffs by letters dated January 3, 1977, Ex. D-1/X3, the plaintiffs did not assert that the plot was undeveloped though it was earlier represented that the Corporation had fully developed the Community and Shopping Centre at Karampura. Shri Andnd Prakash Gupta (P.W. 3) admits that they went to the site after the formal acceptance letter and they found that the area had not been developed at all. Not reacting to the state of affairs existing at the site shows that there was no assurance as alleged. Fifthly, the letter dated March 17, 1977 from the plaintiffs Evergreen Estates & Exhibitors (P) Ltd., Ex. D-3, was issued acknowledging the letter of the acceptance of the bid. In this letter, the plaintiffs say "that no auction has been taken by the Municipal Corporation so far for providing necessary services, such as, water and sewer lines etc." It was not stated even at that time that the site was not developed though such a representation was made at the time of the auction. In the other suit by letter, Ex. X-5 dated March 2, 1977 no grievance is made that the site was not developed though a representation was made at the time of the auction. Again in the letter dated July 1, 1977, Ex. P-7, the plaintiffs wrote that even after a lapse of six months no development had been carried out in the community centre opposite Milan

Cinema auctioned on December 26, 1976 and it remains undeveloped in all respects."

26. There was hardly any argument advanced to dislodge the

aforesaid reasoning process adopted by the learned Single Judge.

We, therefore, do not find any force in this submission of the

appellants as well.

27. In view of these findings, once we hold that there was no

misrepresentation, the reliance of the learned counsel for the

appellants on the judgment of the Supreme Court in Syed Isran

Masood v. State of Madhya Pradesh (supra) is clearly misplaced.

28. These were the arguments addressed by the learned counsel

for the appellants at the time of hearing which have not

convinced us to take a view contrary to the findings of the

learned Single Judge. Resultantly, both these appeals are

dismissed with costs.

                                              (A.K. SIKRI)
                                                JUDGE




July 25, 2008                            (MANMOHAN SINGH)
hp.                                          JUDGE